REGISTER INFORMATION PAGE

Vol. 33 Iss. 24 - July 24, 2017

The Virginia RegisterOF
REGULATIONS is an official state publication issued every other week
throughout the year. Indexes are published quarterly, and are cumulative for
the year. The Virginia Register has several functions. The new and
amended sections of regulations, both as proposed and as finally adopted, are
required by law to be published in the Virginia Register. In addition,
the Virginia Register is a source of other information about state
government, including petitions for rulemaking, emergency regulations,
executive orders issued by the Governor, and notices of public hearings on
regulations.

ADOPTION,
AMENDMENT, AND REPEAL OF REGULATIONS

An
agency wishing to adopt, amend, or repeal regulations must first publish in the
Virginia Register a notice of intended regulatory action; a basis,
purpose, substance and issues statement; an economic impact analysis prepared
by the Department of Planning and Budget; the agency’s response to the economic
impact analysis; a summary; a notice giving the public an opportunity to
comment on the proposal; and the text of the proposed regulation.

Following
publication of the proposal in the Virginia Register, the promulgating agency
receives public comments for a minimum of 60 days. The Governor reviews the proposed
regulation to determine if it is necessary to protect the public health, safety
and welfare, and if it is clearly written and easily understandable. If the
Governor chooses to comment on the proposed regulation, his comments must be
transmitted to the agency and the Registrar no later than 15 days following the
completion of the 60-day public comment period. The Governor’s comments, if
any, will be published in the Virginia Register. Not less than 15 days
following the completion of the 60-day public comment period, the agency may
adopt the proposed regulation.

The
Joint Commission on Administrative Rules (JCAR) or the appropriate standing
committee of each house of the General Assembly may meet during the
promulgation or final adoption process and file an objection with the Registrar
and the promulgating agency. The objection will be published in the Virginia
Register. Within 21 days after receipt by the agency of a legislative
objection, the agency shall file a response with the Registrar, the objecting
legislative body, and the Governor.

When
final action is taken, the agency again publishes the text of the regulation as
adopted, highlighting all changes made to the proposed regulation and
explaining any substantial changes made since publication of the proposal. A
30-day final adoption period begins upon final publication in the Virginia
Register.

The
Governor may review the final regulation during this time and, if he objects,
forward his objection to the Registrar and the agency. In addition to or in
lieu of filing a formal objection, the Governor may suspend the effective date
of a portion or all of a regulation until the end of the next regular General
Assembly session by issuing a directive signed by a majority of the members of
the appropriate legislative body and the Governor. The Governor’s objection or
suspension of the regulation, or both, will be published in the Virginia
Register. If the Governor finds that changes made to the proposed
regulation have substantial impact, he may require the agency to provide an
additional 30-day public comment period on the changes. Notice of the
additional public comment period required by the Governor will be published in
the Virginia Register.

The
agency shall suspend the regulatory process for 30 days when it receives
requests from 25 or more individuals to solicit additional public comment,
unless the agency determines that the changes have minor or inconsequential
impact.

A
regulation becomes effective at the conclusion of the 30-day final adoption
period, or at any other later date specified by the promulgating agency, unless
(i) a legislative objection has been filed, in which event the regulation,
unless withdrawn, becomes effective on the date specified, which shall be after
the expiration of the 21-day objection period; (ii) the Governor exercises his
authority to require the agency to provide for additional public comment, in
which event the regulation, unless withdrawn, becomes effective on the date
specified, which shall be after the expiration of the period for which the
Governor has provided for additional public comment; (iii) the Governor and the
General Assembly exercise their authority to suspend the effective date of a
regulation until the end of the next regular legislative session; or (iv) the
agency suspends the regulatory process, in which event the regulation, unless
withdrawn, becomes effective on the date specified, which shall be after the
expiration of the 30-day public comment period and no earlier than 15 days from
publication of the readopted action.

A
regulatory action may be withdrawn by the promulgating agency at any time
before the regulation becomes final.

FAST-TRACK
RULEMAKING PROCESS

Section
2.2-4012.1 of the Code of Virginia provides an exemption from certain
provisions of the Administrative Process Act for agency regulations deemed by
the Governor to be noncontroversial. To use this process, Governor's
concurrence is required and advance notice must be provided to certain
legislative committees. Fast-track regulations will become effective on the
date noted in the regulatory action if no objections to using the process are
filed in accordance with § 2.2-4012.1.

EMERGENCY
REGULATIONS

Pursuant
to § 2.2-4011 of the Code of Virginia, an agency, upon consultation
with the Attorney General, and at the discretion of the Governor, may adopt
emergency regulations that are necessitated by an emergency situation. An
agency may also adopt an emergency regulation when Virginia statutory law or
the appropriation act or federal law or federal regulation requires that a
regulation be effective in 280 days or less from its enactment.The emergency regulation becomes operative upon its
adoption and filing with the Registrar of Regulations, unless a later date is
specified. Emergency regulations are limited to no more than 18 months in
duration; however, may be extended for six months under certain circumstances
as provided for in § 2.2-4011 D. Emergency regulations are published as
soon as possible in the Register.

During
the time the emergency status is in effect, the agency may proceed with the
adoption of permanent regulations through the usual procedures. To begin
promulgating the replacement regulation, the agency must (i) file the Notice of
Intended Regulatory Action with the Registrar within 60 days of the effective
date of the emergency regulation and (ii) file the proposed regulation with the
Registrar within 180 days of the effective date of the emergency regulation. If
the agency chooses not to adopt the regulations, the emergency status ends when
the prescribed time limit expires.

STATEMENT

The
foregoing constitutes a generalized statement of the procedures to be followed.
For specific statutory language, it is suggested that Article 2 (§ 2.2-4006
et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined
carefully.

NOTICES OF INTENDED REGULATORY ACTION

Vol. 33 Iss. 24 - July 24, 2017

TITLE 18. PROFESSIONAL AND OCCUPATIONALLICENSING

Regulations of the Board of Funeral Directors and Embalmers

Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the
Code of Virginia that the Board of Funeral Directors and Embalmers intends to
consider amending 18VAC65-20, Regulations of the Board of Funeral Directors
and Embalmers. The purpose of the proposed action is to amend
18VAC65-20-151, which provides requirements for continued competency for
renewal of an active license. The board intends to amend the section by
offering one hour of continuing education credit every other year for
attendance at a board meeting, an informal conference, or a formal hearing. In
the year the one hour of credit is granted, the credit would meet the statutory
requirement for "one hour per year covering compliance with federal or
state laws and regulations governing the profession" as required by
§ 54.1-2816.1 of the Code of Virginia.

The agency intends to hold a public hearing on the proposed
action after publication in the Virginia Register.

Statutory Authority: §§ 54.1-2400 and 54.1-2816.1
of the Code of Virginia.

The regulatory action establishes a new chapter, 2VAC5-525,
to address the vapor pressure requirements for ethanol blended gasoline in
Virginia. Specifically, it provides a 1.0 pounds per square inch exception to
the maximum vapor pressure set by ASTM International as currently outlined the
National Institute of Standards and Technology Handbook 130, Section 2.1.2.,
which is incorporated into Virginia's motor fuels and lubricating oils law.

Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.

CHAPTER 425
VAPOR PRESSURE REQUIREMENTS FOR GASOLINE ETHANOL BLENDS

2VAC5-425-10. Definitions.

The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:

"ASTM D4806-16a" means the Standard
Specification for Denatured Fuel Ethanol for Blending with Gasolines for Use as
Automotive Spark-Ignition Engine Fuel published by ASTM International in
February 2016.

"ASTM D4814-16a" means the Standard
Specification for Automotive Spark-Ignition Engine Fuel published by ASTM
International in February 2016.

When gasoline is blended with ethanol, the ethanol shall
meet the requirements of ASTM D4806-16a and the blend shall meet the
requirements of ASTM D4814-16a, with following permissible exceptions:

1. For blends containing nine to 10 volume percent ethanol,
the maximum vapor pressure shall not exceed the ASTM D4814-16a limits by more
than 1.0 psi during the period of June 1 through September 15.

2. For blends containing one or more volume percent ethanol
for volatility class A, B, C, or D, the maximum vapor pressure shall not exceed
ASTM D4814-16a limits by more than 1.0 psi during the period of September 16
through May 31.

3. For blends containing one or more volume percent ethanol
for volatility class E, the maximum vapor pressure shall not exceed ASTM
D4814-16a limits by more than 0.5 psi during the period of September 16 through
May 31.

The amendments update the regulation and align it with
current agency practices and federal requirements by (i) changing the title and
format to be consistent with other pesticide-related regulations; (ii) amending
the language of the regulation to reflect the current agency policy regarding
requirements for submission of pesticide labels; (iii) clarifying the
registration requirements involving mixtures of pesticides and fertilizers,
animal feed, animal remedies, or other pesticides; (iv) amending language to
more closely align the regulation with the Virginia Pesticide Control Act; (v)
removing duplicative registration requirements; (vi) amending and clarifying
regulatory label requirements to more closely align with federal requirements;
(vii) amending ingredient statement requirements for consistency throughout the
regulation; and (viii) clarifying warning or caution statements to more closely
align with federal requirements.

Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.

The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise. Words
used in singular form in this chapter include the plural, and vise versa, as
appropriate.

b. Altering through physiological action the behavior of
ornamental or crop plants or their produce; or

c. Causing leaves or foliage to drop from a plant; or

d. Artificially accelerating the drying of plant tissue.

2. Is present in the product in an amount sufficient to be
effective; and

3. Is not antagonistic to the activity of the principal active
ingredients. The commissioner may require an ingredient to be designated as an
active ingredient if, in his opinion, it sufficiently increases the
effectiveness of the pesticide to warrant such action.

"Commissioner" means the Commissioner of the
Department of Agriculture and Consumer Services.

"Custom mixture" means a pesticide containing
product that has been blended or mixed to a customer's specifications, usually
a pesticide-fertilizer, pesticide-pesticide, pesticide-animal feed, or
pesticide-animal remedy mixture, when:

1. The blend is prepared to the order of the customer and
is not held in inventory by the blender;

2. The blend is to be used on the customer's property,
including leased or rented property;

3. The pesticides used in the blend bear end-use labeling
directions that do not prohibit use of the product in such a blend;

4. The blend is prepared from registered pesticides; and

5. The blend is delivered to the end-user along with a copy
of the end-use labeling of each pesticide used in the blend and a statement
specifying the composition of the mixture.

"Department" means the Department of Agriculture
and Consumer Services.

"Distributor" means a person or business, also
referred to as a supplemental distributor or sub-registrant, that contracts
with a basic federal registrant to produce a product that will be distributed
and sold with labels bearing the distributor's own name and address instead of
the name and address of the basic federal registrant.

"EPA" means the U.S. Environmental Protection
Agency or any program thereof.

[ "Herbicide" means any substance or
mixture of substances intended for preventing, destroying, repelling, or
mitigating any weed, including any algae or other aquatic weed. ]

"Law" means Chapter 39 (§ 3.2-3900 et seq.) of
Title 3.2 of the Code of Virginia, known as the Virginia Pesticide Control Act.

"Minimum risk pesticide" means pesticides that
are described in 40 CFR 152.25(f), which addresses the exemptions for
pesticides of a character not requiring FIFRA regulation, revised as of July 1,
2015. Minimum risk pesticides are exempted from federal registration
requirements under 7 USC § 136 w(b).

"Producer" means a person who manufactures,
prepares, compounds, propagates, or processes any pesticide, device, or active
ingredient used in producing a pesticide. The dilution by an individual of
formulated pesticides for his own use in accordance with the directions on
registered labels shall not alone result in the department considering the
individual a producer for the purposes of this chapter.

"Rodent" means any animal of the order Rodentia
including, but not limited to, rats, mice, rabbits, gophers, prairie dogs, and
squirrels.

"Temporary storage" means the storage of a
pesticide in a container other than the original container in which it was
purchased.

2VAC5-670-30. Label.

A. The name and address of the manufacturerproducer,
registrant, or person for whom the product was produced shall appear on the
label. If the registrant's name appears on the label and the registrant is not
the manufacturer, or if the name of the person for whom the pesticide was
manufactured appears on the label, it must be qualified by appropriate wording
such as "Packed for . . .," "Distributed by..
.," or "Sold by...," to show that the name is not that of the
manufacturer.

B. The name, brand, or trademark of the pesticide appearing
on the label shall be that under which the pesticide is registered.

C. The net content declaration shall comply with the Weights
and Measures Act of Virginia, Chapter 56 (§ 3.2-5600 et seq.) of Title 3.2
of the Code of Virginia and its regulations.

D. Directions for use are required for the protection of the
public. The public includes not only users of pesticides, but also those who
handle them or may be affected by their use, handling, or storage.
Pesticides restricted by this chapter shall be registered only for their
permitted uses, and the label shall have a prominent statement to the effect
that the product is to be used only as directed. Directions for use are
considered necessary in the case of most retail containers, with the
following exceptions.and must include:

1. The statement of use classification.

2. The statement, "It is a violation of federal law to
use this product in a manner inconsistent with its labeling." if the
product requires federal registration.

3. The site of application, for example the crops, animals,
areas, or objects to be treated.

4. The target pest associated with each site.

5. The dosage rate associated with each site and pest.

6. The method of application, including instructions for
dilution, if required, and type of application apparatus or equipment required.

7. The frequency and timing of applications necessary to
obtain effective results without causing unreasonable adverse effects on the
environment.

8. Specific directions concerning the storage, residue
removal, and disposal of the pesticide and its container.

9. Any limitations or restrictions on use required to
prevent unreasonable adverse effects.

E. Directions may be omitted:

1. If the pesticide is to be used by manufacturers in their
regular manufacturing processes, provided that the label clearly shows that the
product is intended for use only in manufacturing processes, and bears an
ingredient statement giving the name and percentage of each of the active
ingredients.

2. If (i) the pesticide is sold to distributorsa
producer for dilution or mixing with carriers to prepare pesticides for
sale to the public, provided that the label bears an ingredient statement
giving the name and percentage of each of the active ingredients; and(ii)
the pesticide is a well-known substance or mixture of substances; and (iii)
there is readily available general knowledge of the composition, methods of
use, and effectiveness of the product for pesticide purposes.

2VAC5-670-40. Ingredient statement.

A. Location of ingredient statement. The ingredient statement
shall appear on the front of the label or that part of the label
displayed under customary conditions of purchase;, except in
cases where the commissioner determines that, due to the size or form of the
container, a statement on that portion of the label is impractical, and
permits the statement to appear on another side or panel of the label. When so
permitted, the ingredient statement shall be in larger typefont
and be more prominent than would otherwise be required. The ingredient
statement shall run parallel with other printed matter on the panel of the
label on which it appears, and shall be on a clear contrasting
background.

B. Names of ingredients. The well-known common name of the
ingredient shall be given or, if the ingredient has no common name, the correct
chemical name. If there is no common name and the chemical composition is
unknown or complex, the commissioner may permit the use of a new or coined name
which he finds to be appropriate for the information and protection of the
user. If the use of a new or coined name is permitted, the commissioner may
prescribe the terms under which it may be used. A trademark or trade name may
not be used as the name of an ingredient, except when it has become a common
name.

C. Percentages of ingredients. Percentages of ingredients
shall be determined by weight, and the sum of the percentages of the
ingredients shall be 100. Sliding scale forms of ingredient statements shall
not be used. Plant incorporated protectant products bearing an ingredient
statement approved by the EPA are permitted to have ingredient statements where
the sum of the percentages of the ingredients do not equal 100.

D. Designation of ingredients. Active ingredients and inert
ingredients shall be so designated, and the term "inert ingredient"
shall appear in the same size typefont and be as prominent as
the term "active ingredient."

2VAC5-670-50. Pesticides highly toxic to humans.

A. Pesticides whichthat fall within any of the
following categories when tested on laboratory animals as specified in subdivisionssubdivision 1, 2, or 3 of this subsection are highly toxic to humans or
contain substances or quantities of substances highly toxic to humans within
the meaning of the law. Such pesticides shall be referred to as pesticides
highly toxic to humans. Upon application and after an opportunity for a
hearing, the commissioner may exempt any pesticide from these requirements whichthat is not highly toxic to humans:

1. Oral toxicity. A pesticide whichthat has
single dose LD50 of 50 milligrams or less per kilogram of body weight,
when administered orally to both male and female rats whichthat
have been fasted for a period of 24 hours (or to other rodent or nonrodent
species specified by the commissioner); or

2. Toxicity on inhalation. A pesticide whichthat
has an LC50 of 2,000 micrograms or less of dust or mist per liter of air or 200
parts per million or less by volume of a gas or vapor, when administered by
continuous inhalation for one hour to both male and female rodent or nonrodent
species specified by the commissioner, if he finds that it is reasonably
foreseeable that such concentration will be encountered by humans; or

3. Toxicity by skin absorption. A pesticide whichthat
has an LD50 of 200 milligrams or less per kilogram of body weight, when
administered by continuous contact for 24 hours with the bare skin of rabbits
(or other rodent or nonrodent species specified by the commissioner).

B. Test on other species. Tests on other specified rodent or
nonrodent species may be required by the commissioner whenever he finds that
tests on other species are necessary to determine whether a pesticide is highly
toxic to humans.

C. Terms LD50 and LC50. An LD50, as used in connection
with oral toxicity and skin absorption toxicity tests, is the dose,that is expected to cause death within 14 days in 50% of the test animals so
treated, and LC50, as used in connection with inhalation tests,
is also the concentration, whichthat is expected to cause
death within 14 days in 50% of the test animals so treated.

D. Toxicity based on human experience. If the commissioner
finds, after an opportunity for hearing, that available data on human
experience with any pesticide indicates a greater toxicity than found in the
tests on animals, the human data shall take precedence;, and if
he finds that the protection of the public so requires, the commissioner shall
declare such a pesticide to be highly toxic to humans for the purposes of this
law and its regulations.

2VAC5-670-60. Warning or caution statementprecautionary
statements.

A. Warning or cautionprecautionary statements whichthat are necessary and, adequate to prevent injury to humans,
useful vertebrate, and invertebrate animals, and useful vegetation, must
appear on the label in a place sufficiently prominent to warn the user. They
shall state clearly and in nontechnical language the particular hazard involved
in the use of the pesticide (e.g., ingestion, skin absorption, inhalation,
flammability, or explosion), and the precautions to be taken to avoid accident,
injury, or damage.

B. The label of every pesticide shall bear warnings or cautions
whichprecautionary statements that are necessary for the protection
of the public, including the statement, "Keep out of reach of
children," and a signal word such as "DANGER,"
"WARNING," or "CAUTION," which the commissioner may
prescribe, on the front panel or that part of the label displayed under
customary conditions of purchase. However, the commissioner may permit
reasonable variations in the placement of that part of the required warnings
and cautionsprecautionary statements other than the statement
"Keep out of reach of children" and the required signal word,
if in his opinion such variations would not be injurious to the public. If a
pesticide is marketed in channels of trade where the likelihood of contact with
children is extremely remote, or if the nature of the product is such that it
is likely to be used on infants or small children without causing injury under
any reasonably foreseeable conditions, the commissioner may waive the
requirements of the statement "Keep out of reach of children." The
commissioner may permit a statement such as "Keep away from infants and
small children" instead of the statement "Keep out of reach of children,"
if he determines that such a variation would not be injurious to the public.

C. The label of every pesticide which is highly toxic to
humans shall bear the words "DANGER" and "POISON" in red on
a contrasting background next to the skull and crossbones, and an antidote
statement including directions to call a physician immediately, on the front
panel or that part of the label displayed under customary conditions of
purchase. However, the commissioner may permit reasonable variations in the
placement of the antidote statement if some reference such as "See
antidote statement on back panel" appears on the front panel near the word
"POISON" and the skull and crossbones.

D. Warning or caution statements which comply with the
requirements of the regulations for the enforcement of the Federal Insecticide,
Fungicide and Rodenticide Act shall be considered in compliance with the
requirements of this chapter.

2VAC5-670-70. Registration.

A. Eligibility. Any manufacturer, packer, seller,
distributor, or shipper of a pesticide is eligible as a registrant and may
register the pesticide.

B. Pesticides requiring registration. All products that
require registration under FIFRA, as well as "minimum risk
pesticides," are required to be registered annually with the department.
All products requiring federal registration must have and maintain a valid
federal registration to be registered in the Commonwealth.

B.C. Procedure for registration. Application
for registration should be made on thea form provided by the
department. Application forms will be furnished upon request to the
Virginia Department of Agriculture and Consumer Services, Office of Pesticide
Services, Post Office Box 1163, Richmond, Virginia 23218. ApplicationA
completed application form should be submitted as far in advance as possible,
before the time registration is desired to take effect and must be
accompanied by:

1. The final container label and all associated labeling;

2. The material safety data sheet or safety data sheet; and

3. The fees required under 2VAC5-675-20.

C.D. Effective date of registration.
Registration of a pesticide shall become effective on the date the certificate
of registration is issued.

D.E. Responsibility of a registrant. The
registrant is responsible for the accuracy and completeness of all information
submitted in connection with his application for registration of a pesticide.

E.F. Changes in labeling or formula.

1. Changes in the labeling, or formula of a registered
pesticide, shall be submitted in advance to the Office of Pesticide Services.
The registrant shall describe the exact changes desired and the proposed
effective date; and upon request, shall submit a description of tests which
justify such changes.

2. After the effective date of a change in labeling or
formula, the product shall be marketed only under the new label or formula,
except that a reasonable time may be permitted by the commissioner to dispose
of properly labeled stocks of old products.

F.G. Claims shall conform to registration.
Claims made for a pesticide shall not differ in substance from representations
made in connection with registration, including representations with respect to
effectiveness, ingredients, directions for use, or pests against which the
product is recommended.

2VAC5-670-80. Coloration and discoloration.

A. Unless exempted by 2VAC5-670-130 of this chapter,
the white pesticides hereinafter namedlisted in subsections C and D
of this section shall be colored or discolored in compliance with this
section. The hues, values, and chromas specified are those contained in the
Munsell Book of Color, Munsell Color Company, Baltimore, Maryland.

B. Coloring agent. The coloring agent shall produce a
uniformly colored product not subject to change in color beyond the minimum
requirements specified in this chapter during ordinary conditions of marketing
or storage. They must not cause the product to become ineffective, or cause
damage when used as directed.

C. Arsenicals and barium fluosilicate. Standard lead
arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc
arsenate, zinc arsenite, and barium fluosilicate shall be colored any hue
except the yellow-reds and yellows, having a value of not more than eight and a
chroma of not less than four, or shall be discolored to a neutral lightness
value not over seven.

D. Sodium fluoride and sodium fluosilicate. Sodium fluoride
and sodium fluosilicate shall be colored blue or green having a value of not
more than eight and a chroma of not less than four, or shall be discolored to a
neutral lightness value not over seven.

E. Exceptions. The commissioner, after the opportunity for a
hearing, may permit other hues to be used for any particular purpose, if the
prescribed hues are not feasible for the purpose, and if this action will not
be injurious to the public.

2VAC5-670-130. Exemption.

A. Any pesticide specified in 2VAC5-670-80 of this
chapter whichthat is intended solely for use by a textile
manufacturer or commercial laundry, cleaner, or dyer as a mothproofing agent,
or used in the manufacture or processing orof rubber, glue,
or leather goods, whichthat would not be suitable for such use
if colored and whichthat will not come into the hands of the
public except when incorporated into a fabric and will not be present in these
finished goods in sufficient quantities to cause injury to any person, shall be
exempt from the requirements of 2VAC5-670-80.

B. The following products are exempt from the requirements
of this chapter:

1. Substances described in 40 CFR 152.6, revised as of July
1, 2015, that are excluded from regulation by FIFRA.

2. Products described in 40 CFR 152.8, revised as of July
1, 2015, that are not pesticides because they are not for use against
"pests."

3. Products described in 40 CFR 152.10, revised as of July
1, 2015, that are not pesticides because they are not intended for a pesticidal
purpose.

4. Pesticides or classes of pesticides described in
40 CFR 152.20, revised as of July 1, 2015, that are regulated by a federal
agency other than the EPA.

5. Treated articles or substances as described in
40 CFR 152.25(a), revised as of July 1, 2015. An article or substance
treated with or containing a pesticide to protect the article or substance
itself if the pesticide is registered with the EPA for such use.

6. Pheromones and pheromone traps as described in
40 CFR 152.25(b), revised as of July 1, 2015.

7. Preservatives and embalming fluids as described in
40 CFR 152.25(c), revised as of July 1, 2015.

8. Foods as described in 40 CFR 152.25(d), revised as of
July 1, 2015.

9. Natural cedar as described in 40 CFR 152.25(e), revised
as of July 1, 2015.

2VAC5-670-140. Declaration of pests.

In addition to those pests defined in Article 1 of the law,
the commissioner hereby declares as pests the following forms of plant and
animal life and viruses:

1. Mammals, including but not limited to dogs, cats, moles,
bats, wild carnivores, armadillos, and deer;

2. Birds, including but not limited to starlings, English
sparrows, crows, and blackbirds;

3. Fishes, including but not limited to the jawless fishes
such as the sea lamprey, the cartilaginous fishes such as the sharks, and the
bony fishes such as the carp;

4. Amphibians and reptiles, including but not limited to
poisonous snakes;

5. Aquatic and terrestrial invertebrates, including but not
limited to slugs, snails, and crayfish;

6. Roots and other plant parts growing where not wanted; and

7. Viruses, other than those on or in humans or animals.

2VAC5-670-150. Handling and storage.

No person shall handle, transport, store, display, or
distribute pesticides in a manner whichthat may endanger humans
and the environment, or food, feed, or any other products that may be
transported, stored, displayed, or distributed with the pesticides.

2VAC5-670-160. Disposal.

No person shall dispose of, discard, or store any pesticides
or pesticide containers in a manner whichthat may cause injury
to humans, vegetation, crops, livestock, wildlife, or pollinating
insects, or pollute any water supply or waterway. Pesticides or
pesticide containers must be disposed of in accordance with all local, state,
and federal solid waste and hazardous waste laws and regulations.

2VAC5-670-180. Cancellation authority.

All pesticides whichthat have been cancelledcanceled or suspended by the United States Government are subject to
cancellation in Virginia. No registration shall be revoked or refused until the
registrant has been given an opportunity for a hearing by the commissioner. Any
appeal of cancellation at the federal level shall not affect cancellation
proceedings with this Commonwealth.

2VAC5-670-220. Mixtures.

A. General sale.

Regardless of type container mixtures of pesticides with
fertilizers or with other pesticides, when offered for general sale to the
public shall be registered prior to sale, distribution, or use. In addition,
any pesticide/fertilizer mixture shall be registered or labeled as required by
the Virginia Fertilizer Law.1. All pesticide-fertilizer,
pesticide-pesticide, pesticide-animal feed, and pesticide-animal remedy
mixtures shall be registered under the requirements of the Virginia Pesticide
Control Act (§ 3.2-3900 et seq. of the Code of Virginia) and this chapter
prior to sale or distribution to or use by the public. All bulk containers
shall bear the registered pesticide product label and a copy of the label shall
accompany each shipment or delivery.

2. Any pesticide-fertilizer mixture shall be registered as
required by the Virginia Fertilizer Law (§ 3.2-3600 et seq. of the Code of
Virginia). Labeling must meet the requirements of the Virginia Pesticide
Control Act, this chapter, and the Virginia Fertilizer Law.

3. Any pesticide-animal feed or pesticide-animal remedy
mixtures shall be registered as required by the Virginia Commercial Feed Law
(§ 3.2-4800 et seq. of the Code of Virginia) and the Animal Remedies Law
(§ 3.2-4900 et seq. of the Code of Virginia). Labeling must meet the
requirements of the Virginia Pesticide Control Act, this chapter, the Virginia
Commercial Feed Law, and the Animal Remedies Law.

B. Custom mixtures. Pesticides may be mixed with fertilizers or
with, other pesticides, or animal feed without label
registration when the pesticide product is duly registered, and when
such mixtures are not prohibited by the registered pesticide label.

C. When these mixtures are intended for the production of
agricultural commodities, the person making the mixtures shall provide the
following written or printed information to the applicator or customer:

4. Precautionary and warning statements sufficient to ensure
proper,and safe use, and disposal of the mixture.

D. The registered pesticide product label(s)label
will suffice. All such labeling shall be subject to approval by the
commissioner.

NOTICE: The following
form used in administering the regulation was filed by the agency. The form is
not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of the form with a hyperlink to
access it. The form is also available from the agency contact or may be viewed
at the Office of the Registrar of Regulations, 900 East Main Street, 11th
Floor, Richmond, Virginia 23219.

The amendments align the regulation with current agency
practices and federal requirements by (i) adding a definition of the term
"distribute" or "distribution" and amending the definition
of the term "pesticide business location" to address current industry
practices; (ii) adding a definition of the term "limited household
use" in order to clarify the requirements for merchants who are exempt
from pesticide business licenses under the Virginia Pesticide Control Act;
(iii) adding a definition of the term "multiple violations"; (iv)
clarifying the current requirements for the application for a pesticide
business license; (v) clarifying the current requirement regarding evidence of
financial responsibility; and (vi) amending the recordkeeping requirements to
be consistent with other pesticide labeling requirements in 2VAC5-670, Rules
and Regulations for Enforcement of the Virginia Pesticide Law, and this
chapter.

Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.

Part I
Definitions

2VAC5-680-10. Definition of termsDefinitions.

The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise. An
asterisk following a definition denotes that the definition has been taken from
§ 3.2-100 or Article 1 (§ 3.2-3900 et seq.) of Chapter 39 of Title 3.2 of the
Code of Virginia.

"Board" means the Board of Agriculture and Consumer
Services.*

"Bulk pesticide" means any registered pesticide
concentrate whichthat is transported or held in an individual
container in undivided quantities of greater than 55 U.S. gallons liquid
measure or greater than 100 pounds net dry weight.

"Certification" or "certified" means the
recognition granted by the Board of Agriculture and Consumer Services to an
applicator upon satisfactory completion of board approved requirements.*

"Commercial applicator" means any person who has
completed the requirements for certification as determined by the board to use
or supervise the use of any pesticide for any purpose or on any property other
than as provided in the definition of private applicator.*

"Commissioner" means the Commissioner of
Agriculture and Consumer Services.*

"Department" means the Department of Agriculture
and Consumer Services.*

"Distribute" or "distribution" means
the act of distributing, selling, offering for sale, holding for sale,
shipping, holding for shipment, delivering for shipment or receiving and,
having so received, delivering or offering to deliver, or releasing for
shipment to any person in any state. The term includes the sale of pesticides
to wholesalers, retailers, and other merchants or to industrial, institutional,
and commercial businesses for use by the employees of the business.

"EPA" means the United StatesU.S.
Environmental Protection Agency.

"FIFRA" means the Federal Insecticide, Fungicide,
and Rodenticide Act as amended, and herein incorporated by reference in
this chapter.

"Licensed" or "licensee" means those
businesses which, upon meeting the requirements established by the Board of
Agriculture and Consumer Services, are issued a license to engage in the sale,
storage, distribution, recommend therecommendation for use, or
application of pesticides in Virginia in exchange for compensation.*

"Limited household use" means the use of any
general use pesticide product in or on a person's own dwelling and associated
grounds such as lawn, garden, pool, or outbuildings. The term also means the
use of a general use pesticide applied to animals owned as pets or raised for
personal use and the use of personal use products such as mosquito repellents.

"Limited quantities" means purchases, at cost, for
resale, of less than $50,000 annually per outlet of products containing nonrestricted
use pesticide active ingredients.

"Multiple violations" means more than one
violation of the Act or regulations pursuant to the Act.

"Pest management consultant" means any person, who
may or may not apply pesticides himself, who has obtained a business license in
accordance with the requirements listed belowin this chapter,
and who is authorized by this chapter to provide technical advice, supervision
or aid, or recommendations for pesticide application commercially in Virginia.

"Pesticide" means (i) any substance or mixture of
substances intended for preventing, destroying, repelling, or mitigating any
insects, rodents, fungi, bacteria, weeds, or other forms of plant or animal
life or viruses or bacteria, except viruses on or in living man or other
animals, which the commissioner shall declare to be a pest, (ii) any substance
or mixture of substances intended for use as a plant regulator, defoliant, or
desiccant, and (iii) any substance which is intended to become an active
ingredient in any substance defined in clauses (i) and (ii) of this definition.*

"Pesticide business" means any person engaged in
the business of distributing, applying, or recommending the use of a product;
or storing, selling, or offering for sale pesticides for distribution directly
to the user. The term "pesticide business" does not include (i) wood
treaters not for hire; (ii) seed treaters not for hire; (iii) operations that
produce agricultural products unless the owners or operators of such operations
described in clauses (i), (ii), and (iii) of this definition are engaged in the
business of selling or offering for sale pesticides, or distributing pesticides
to persons outside of that agricultural producing operation in connection with
commercial transactions; or (iv) businesses exempted by regulations adopted by
the board.*

"Pesticide business location" means any fixedphysical location of a pesticide business with either a telephone
that is used to transact business or give advice,financial
transactions, arrangement of services, or assignment of work or where
products, supplies, or business mail is delivered. Residences of
service technicians who are employed by a licensed pesticide business are
exempt, if no business solicitation is conducted from that location.The
term excludes buildings or locations, including employees' residences, used
solely for storage of service vehicles, equipment, or supplies or telephone
answering services.

"Private applicator" means an applicator who uses
or supervises the use of any pesticide which is classified for restricted use
for purposes of producing any agricultural commodity on property owned or
rented by him or his employer or, if applied without compensation other than
trading of personal services between producers of agricultural commodities, on
the property of another person.*

"Restricted use pesticide" or "pesticide
classified for restricted use" means any pesticide classified as
restricted by the Administrator of the United StatesU.S.
Environmental Protection Agency.*

"Sale" or "sell" means the transfer of
goods to or to render services to another in exchange for compensation of any
kind.

"Virginia Pesticide Control Act" or "Act"
means Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of
Virginia.

Part II
Procedures for Obtaining a Business License

2VAC5-680-20. General requirements for all pesticide
businesses; exemptions.

A. Any person or business operating in Virginia, whichthat, in exchange for compensation, sells, stores, distributes, mixes,
applies, or recommends for use pesticides,in Virginia
shall obtain a valid pesticide business license pursuant to this chapter. Each
pesticide business location shall be licensed.

3. Certified applicators not for hire; including those who use
or supervise the use of pesticides as part of their job duties only on property
owned or leased by themselves or their employer; and

4. Providers of janitorial, cleaning or sanitizing services if
the providers use no pesticides other than sanitizers, disinfectants and
germicides.

C. Application for a pesticide business license is made by
submitting to the department (i) a completed application form and,
(ii) a check or money order in the amount of the annual business license fee
established by the board, and (iii) evidence of financial responsibility, as
required in 2VAC5-680-80.

D. Each applicant for a pesticide business license, or an
employee designated by the applicant, shall demonstrate to the commissioner his
knowledge of (i) pesticide laws and regulations; (ii) potential hazards of pesticides
to man and the environment; and (iii) safe distribution, use, and disposal of
pesticides by passing a written examination prior to his being issued a
business license. If the applicant is already certified as a commercial
applicator, he shall be exempt from the initial examination requirement.

E. All licensed pesticide businesses shall maintain written
records pertaining to their operations, as required in this chapter.

F. All licensed pesticide business locations or outlets which
sell restricted use pesticides, or distribute restricted use pesticides for
purposes of selling, shall have a certified commercial applicator present who
shall bear immediate responsibility for the correct and safe operation of the
location or outlet. Each business shall notify the department of the name of
the commercial applicator assigned to each location or outlet, and shall also
notify the department within three business days of any change in the
applicator assignments during the license period.

G. All licensed pesticide businesses that store, repack and
distribute bulk pesticides shall meet the requirements established by the board
for the storage, repackaging and distribution of bulk pesticides.

H. All pesticide business licenses shall expire at midnight
on March 3l of each year. Licensees shall renew their licenses annually by
application to the department and payment of the annual fee on or before close
of business March 31. The department shall charge a 20% penalty in addition to
the regular fee for renewal applications filed after March 31.

2VAC5-680-60. Recordkeeping of restricted use pesticide sales
by pesticide businesses.

A. Pesticide businesses that sell restricted use pesticides
shall maintain a record of each restricted use pesticide sold. Each sales record
shall contain the following:

1. Name, address, certified applicator number or business
license number, and certificate or license expiration date of the person to
whom the restricted use pesticide was sold or delivered;

2. Date of sale;

3. Brand, trademark, or common product name appearing
on the product's label;

4. EPA registration number; and

5. Quantity of pesticide sold or delivered.

B. The restricted use pesticide sales recordkeeping
requirement may be satisfied by invoices, if (i) such invoices are kept
separate from the licensee's other sales records, and (ii) the invoices contain
the above information required by subsection A of this section.

A. Prior to being issued a pesticide business license, a
business shall furnish evidence of financial responsibility, consisting of a
liability insurance policy from a person authorized to do business in Virginia,
or a certification thereof, protecting persons who may suffer legal damages as
a result of the use of any pesticide by the applicant.

B. The liability insurance policy shall meet the following
conditions:

1. The certificate of insurance shall include the name of the
insurance company, policy number, insurance amount, type of coverage afforded,
any exclusions relating to damage arising from the use of pesticides, and
expiration date of the policy. The policy shall cover liability arising out of
the handling, storage, application, use or misuse, or disposal of any
pesticide; it shall also cover liability relating to completed operations.

2. The policy shall be in an amount specified in subsection C
of this section.

3. The licensee shall forward a current certificate of
insurance to the board at each insurance renewal date.

C. The amount of financial responsibility as provided for in
this section shall be a minimum of $100,000 for property damage, and $100,000
for personal injury or death of one person; and $300,000 per occurrence. The
licensee shall maintain at least the minimum coverage at all times during the
license period, and shall notify the board at least 10 days prior to any
reduction at the request of the licensee or cancellation of such financial
responsibility by the insurer. If the deductible of an applicant for a business
license is greater than $1,000, evidence of financial responsibility shall be
furnished to the board to satisfy the difference between the applicant's
deductible and the $1,000 deductible. This evidence may consist of a financial
statement.

D. The licensee shall maintain at least the minimum
coverage at all times during the license period and shall notify the board at
least 10 days prior to any reduction at the request of the licensee or
cancellation of such financial responsibility by the insurer.

VA.R. Doc. No. R16-4506; Filed June 30, 2017, 3:08 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

BOARD OF GAME AND INLAND FISHERIES

Final Regulation

REGISTRAR'S NOTICE: The
Board of Game and Inland Fisheries is claiming an exemption from the
Administrative Process Act pursuant to § 2.2-4002 A 3 of the Code of
Virginia when promulgating regulations regarding the management of wildlife.

Title of Regulation: 4VAC15-20. Definitions and
Miscellaneous: In General (amending 4VAC15-20-50).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the
Code of Virginia.

The amendments (i) remove reference to red fox from the
list of animals defined as domestic animals, (ii) clarify the definition of a
European rabbit to differentiate between domestic rabbit breeds and wild
European rabbits, and (iii) allow individuals who already own red foxes and
European rabbits as pets to keep them in captivity until the animal dies,
provided the individual declares such possession to the department prior to
January 1, 2018.

A. In accordance with § 29.1-100 of the Code of
Virginia, the following terms shall have the meanings ascribed to them by this
section when used in regulations of the board:

"Native animal" means those species and subspecies
of animals naturally occurring in Virginia, as included in the department's
2014 "List of Native and Naturalized Fauna of Virginia," with copies
available in the Richmond and regional offices of the department.

"Naturalized animal" means those species and
subspecies of animals not originally native to Virginia that have established
wild, self-sustaining populations, as included in the department's 2014
"List of Native and Naturalized Fauna of Virginia," with copies
available in the Richmond and regional offices of the department.

"Nonnative (exotic) animal" means those species and
subspecies of animals not naturally occurring in Virginia, excluding domestic
and naturalized species.

The following animals are defined as domestic animals:

Domestic dog (Canis familiaris), including wolf hybrids.

Domestic cat (Felis catus), including hybrids with wild
felines.

Domestic horse (Equus caballus), including hybrids with Equus
asinus.

Domestic ass, burro, and donkey (Equus asinus).

Domestic cattle (Bos taurus and Bos indicus).

Domestic sheep (Ovis aries) including hybrids with wild sheep.

Domestic goat (Capra hircus).

Domestic swine (Sus scrofa), including pot-bellied pig
excluding any swine that are wild or for which no claim of ownership can be
made.

Llama (Lama glama).

Alpaca (Lama pacos).

Camels (Camelus bactrianus and Camelus dromedarius).

Domesticated races of hamsters (Mesocricetus spp.).

Domesticated races of mink (Mustela vison) where adults are
heavier than 1.15 kilograms or their coat color can be distinguished from wild
mink.

Domesticated races of red fox (Vulpes vulpes) where their
coat color can be distinguished from wild red fox.

Domesticated races of guinea pigs (Cavia porcellus).

Domesticated races of gerbils (Meriones unguiculatus).

Domesticated races of chinchillas (Chinchilla laniger).

Domesticated races of rats (Rattus norvegicus and Rattus
rattus).

Domesticated races of mice (Mus musculus).

Domesticated racesbreeds of European rabbit
(Oryctolagus cuniculus) recognized by the American Rabbit Breeders
Association, Inc. and any lineage resulting from crossbreeding recognized
breeds. A list of recognized rabbit breeds is available on the department's
website.

"Wild animal" means any member of the animal
kingdom, except domestic animals, including without limitation any native,
naturalized, or nonnative (exotic) mammal, fish, bird, amphibian, reptile,
mollusk, crustacean, arthropod or other invertebrate, and includes any hybrid
of them, except as otherwise specified in regulations of the board, or part,
product, egg, or offspring of them, or the dead body or parts of them.

B. Exception for red foxes and European rabbits.
Domesticated red foxes (Vulpes vulpes) having coat colors distinguishable from
wild red foxes and [ wild ] European rabbits possessed
in captivity on July 1, 2017, may be maintained in captivity until the animal
dies, but the animal may not be bred or sold without a permit from the
department. Persons possessing domesticated red foxes or European rabbits
without a permit from the department must declare such possession in writing to
the department by January 1, 2018. This written declaration must include the
number of individual animals in possession and date acquired, sex, estimated
age, coloration, and a photograph of each fox or European rabbit. This written
declaration shall (i) serve as a permit for possession only, (ii) is not transferable,
and (iii) must be renewed every five years.

VA.R. Doc. No. R17-5066; Filed June 29, 2017, 2:53 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

BOARD OF GAME AND INLAND FISHERIES

Final Regulation

REGISTRAR'S NOTICE: The
Board of Game and Inland Fisheries is claiming an exemption from the
Administrative Process Act pursuant to § 2.2-4002 A 3 of the Code of
Virginia when promulgating regulations regarding the management of wildlife.

The amendments authorize (i) Department of Game and Inland
Fisheries staff, federal employees involved in wildlife management, animal
control officers, and commercial nuisance animal permit holders to humanely
dispatch wildlife when necessary and (ii) the department director to set policy
regarding the methods of and documentation for the capture, possession,
transport, release, and humane dispatch of wildlife.

4VAC15-30-50. Possession, transportation, and release of
wildlife by authorized persons.

A. Department employees in the performance of their official
duties; U.S. government agencies' employees whose responsibility includes
fisheries and wildlife management; and county, city, or town
animal control officers in the performance of their official duties related to
public health concerns or problem wildlife removal,; and individuals
operating under conditions of a commercial nuisance animal permit issued by the
department pursuant to §§ 29.1-412 and 29.1-417 of the Code of Virginia
will be deemed to be permitted pursuant to this section to capture, temporarily
hold or possess, transport, release, and when necessary humanely euthanizedispatch wildlife, provided that the methods of and documentation for
the capture, possession, transport, release, and euthanasiahumane
dispatch shall be in accordance with boarddirector policy.

B. Local animal shelters operating under the authority of, or
under contract with, any county, city, or town with animal control
responsibilities shall be authorized to receive, temporarily confine, and
humanely euthanize wildlife, except for state or federal threatened and
endangered species; federally protected migratory bird species; black bear;
white-tailed deer; and wild turkey, provided that the methods of and
documentation for the possession, confinement, and euthanasia shall be in
accordance with conditions defined by the agency director. Provided further
that any person may legally transport wildlife, except for those species listed
abovein this subsection, to an authorized animal shelter after
contacting the facility to confirm the animal will be accepted.

C. Employees or agents of other state wildlife agencies while
in the performance of their official duty in transporting wildlife through the
Commonwealth will be deemed to be permitted pursuant to this section, provided
that a list of animals to be transported, a schedule of dates and locations
where those animals will be housed while in the Commonwealth, and a letter of
authorization from both the forwarding and receiving state agencies are
provided to the department 24 hours prior to the transporting of such animals,
and further provided that such animals shall not be liberated within the
Commonwealth.

D. Employees or agents of government agencies, while in the
performance of their official duties, may temporarily possess, transport, and
dispose of carcasses of wild animals killed by vehicles, except for state or
federal threatened and endangered species, and federally protected migratory
bird species.

E. With prior written approval from the director or his
designee and under conditions of an applicable department permit, institutions
with bona fide accreditation from the Association of Zoos and Aquariums may
possess, transport, have transported, export, or import native and naturalized
species defined in the List of Native and Naturalized Fauna of Virginia, which
is incorporated by reference into 4VAC15-20-50.

VA.R. Doc. No. R17-5067; Filed June 29, 2017, 12:42 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

BOARD OF GAME AND INLAND FISHERIES

Final Regulation

REGISTRAR'S NOTICE: The
Board of Game and Inland Fisheries is claiming an exemption from the
Administrative Process Act pursuant to § 2.2-4002 A 3 of the Code of
Virginia when promulgating regulations regarding the management of wildlife.

Title of Regulation: 4VAC15-40. Game: In General (amending 4VAC15-40-30, 4VAC15-40-275;
adding 4VAC15-40-225, 4VAC15-40-287).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the
Code of Virginia (4VAC15-40-30, 4VAC15-40-225, and 4VAC15-40-275).

The amendments (i) add raccoons to the list of species that
may be taken by the use or aid of recorded animal or bird calls or sounds; (ii)
specifically allow humane dispatch methods for animals captured in traps; (iii)
limit the requirement for a fur dealer permit to those who purchase raw fur or
unskinned carcasses of fur-bearing animals; (iv) provide for the purchase and
sale of pelts not defined as being raw, skinned carcasses, and other furbearer
parts by any person at any time without a permit; (v) define "raw
fur"; and (vi) provide a model ordinance for cities and towns to prohibit
feeding deer.

It shall be unlawful to take or attempt to take wild animals
and wild birds with the exception of bobcats, coyotes, crows, and foxes,
and raccoons by the use or aid of recorded animal or bird calls or sounds
or recorded or electrically amplified imitation of animal or bird calls or
sounds; provided, that electronic calls may be used on private lands for
hunting bobcats, coyotes, and foxes, and raccoons with written
permission of the landowner and on public lands except where specifically
prohibited.

It shall be lawful to kill wild animals legally captured
in live traps using any humane method of dispatch not specifically prohibited
by law [ ; however, it shall be unlawful to intentionally drown
any wild animal captured in a cage or box trap ].

4VAC15-40-275. Sale of furbearer pelts, carcasses, and
parts.

Carcasses, including portions of carcasses, of legally
taken and possessed fur-bearing animals may be sold at any time to buyers
permittedIt shall be unlawful to buy, sell, barter, traffic or trade
in, bargain for, or solicit for purchase raw pelts and unskinned carcasses of
fur-bearing animals defined in § 29.1-100 of the Code of Virginia without
having first obtained a fur dealer permit in accordance with
§§ 29.1-400 through 29.1-407 of the Code of Virginia [ . A,
except that a ] permit shall not be required of [ any:

1. Any ] hunter or trapper, or any person
lawfully engaged in the business of fur farming, to sell or dispose of legally
taken or possessed raw pelts and unskinned carcasses of fur-bearing animals at
any time. [ Provided further, that a permit shall not be
required for any

2. Any person to purchase legally taken or possessed raw
pelts or unskinned carcasses of fur-bearing animals at any time if the pelts
are to be tanned or used in taxidermy mounts for personal use and not for
resale, trade, or other commercial purposes.

3. Any ] person to buy or sell at any time
pelts that are not defined as being raw, skinned carcasses [ , such
as taxidermy mounts, ] or any other parts of legally taken and
possessed fur-bearing animals defined in § 29.1-100 of the Code of Virginia.
Such parts shall include skulls, teeth, claws, bones, glands, and secretions.
For the purposes of this section, "raw pelt" shall be defined as any
pelt with its hair or fur intact that has not been tanned, cured, chemically
preserved, or converted to any usable form beyond initial cleaning, stretching,
and drying. Salt-cured and sun-cured pelts shall be considered raw pelts.

4VAC15-40-287. Model ordinances related to feeding of deer
in cities and towns.

Per the provisions of § 29.1-527.2 of the Code of
Virginia, the following model ordinance related to the feeding of deer may be
adopted by a city or town. Any city or town must notify the director of the
Department of Game and Inland Fisheries of the adoption of such an ordinance by
registered mail.

Model ordinance:

A. Pursuant to § 29.1-527.2 of the Code of Virginia, it
shall be unlawful for any person to place, distribute, or allow the placement
of food, salt, minerals, or similar substances to feed or attract deer at any
time.

B. No person shall continue to place, distribute, or allow
the placement of food, salt, minerals, or similar substances for any purpose if
the placement of these materials results in the presence of deer.

C. No part of this ordinance shall be construed to
restrict agricultural, commercial, noncommercial, or residential plantings
(including wildlife food plots); bona fide distribution of food to livestock;
or wildlife management activities conducted or authorized by the Department of
Game and Inland Fisheries.

VA.R. Doc. No. R17-5068; Filed June 29, 2017, 3:10 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

BOARD OF GAME AND INLAND FISHERIES

Proposed Regulation

REGISTRAR'S NOTICE: The
Board of Game and Inland Fisheries is claiming an exemption from the
Administrative Process Act pursuant to § 2.2-4002 A 3 of the Code of
Virginia when promulgating regulations regarding the management of wildlife.

Title of Regulation: 4VAC15-70. Game: Bobcat (amending 4VAC15-70-60).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the
Code of Virginia.

The proposed amendments allow hunting bobcats with the
slingbow, which is a type of bow and arrow.

4VAC15-70-60. Archery hunting with bow and arrow or crossbow.

A. Season. It shall be lawful to hunt bobcats with bow and
arrow or, crossbow, or slingbow from the first Saturday in
October through October 31, both dates inclusive.

B. Carrying firearms prohibited. It shall be unlawful to
carry firearms while hunting with bow and arrow or, crossbow,
or slingbow during the special archery seasons.

C. Use of dogs prohibited during the special archery season.
It shall be unlawful to use dogs when hunting with bow and arrow or,
crossbow, or slingbow during any special archery season.

VA.R. Doc. No. R17-5195; Filed July 5, 2017, 1:43 a.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

BOARD OF GAME AND INLAND FISHERIES

Proposed Regulation

REGISTRAR'S NOTICE: The
Board of Game and Inland Fisheries is claiming an exemption from the
Administrative Process Act pursuant to § 2.2-4002 A 3 of the Code of
Virginia when promulgating regulations regarding the management of wildlife.

Title of Regulation: 4VAC15-90. Game: Deer (amending 4VAC15-90-70).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the
Code of Virginia.

The proposed amendment allows a county participating in the
urban archery deer hunting season to exclude geographic areas from the season,
when consistent with the Department of Game and Inland Fisheries deer
management objectives.

4VAC15-90-70. Archery hunting.

A. It shall be lawful to hunt deer during the early special
archery season with archery equipment from the first Saturday in October
through the Friday prior to the third Monday in November, both dates inclusive.

B. In addition to the season provided in subsection A of this
section, it shall be lawful to hunt deer during the late special archery season
with archery equipment from the Sunday following the close of the general
firearms season on deer through the first Saturday in January, both dates
inclusive, in all cities, towns, and counties west of the Blue Ridge Mountains
(except Clarke County and on non-national forest lands in Frederick County) and
in the counties (including the cities and towns within) of Amherst (west of
Business U.S. 29 from the James River to its intersection with U.S. 29 just
south of the Town of Amherst continuing north on U.S. 29 to the Tye River),
Bedford, Franklin, Henry, Nelson (west of Route 151), Patrick and on the
Chester F. Phelps Wildlife Management Area and on national forest lands in
Frederick County and from December 1 through the first Saturday in January,
both dates inclusive, in the cities of Chesapeake, Suffolk (east of the Dismal
Swamp Line), and Virginia Beach.

C. Deer of either sex may be taken full season during the
special archery seasons as provided in subsections A and B of this section
(except on PALS (Public Access Lands) in Dickenson County where it shall be
unlawful to take antlerless deer during the special archery seasons provided
for in subsections A and B of this section).

D. It shall be unlawful to carry firearms while hunting with
archery equipment during the special archery seasons, except that a
muzzleloading gun, as defined in 4VAC15-90-80, may be in the possession of a
properly licensed muzzleloading gun hunter when and where a special archery
deer season overlaps a special muzzleloading deer season.

E. It shall be unlawful to use dogs when hunting with archery
equipment during any special archery season, except that tracking dogs as
described in § 29.1-516.1 of the Code of Virginia may be used.

F. It shall be lawful to hunt antlerless deer during the
special urban archery season with archery equipment from the first Saturday in
September through the Friday prior to the first Saturday in October, both dates
inclusive, and from the Sunday following the first Saturday in January through
the last Sunday in March, both dates inclusive, within the incorporated limits
of any city or town in the Commonwealth (except on national forest and
department-owned lands) and counties with a human population density of 300
persons per square mile or more (except on national forest and department-owned
lands), provided that its governing body submits by certified letter to the
department prior to April 1, its intent to participate in the special urban
archery season. Any city, town, or county no longer participating in this
season shall submit by certified letter to the department prior to April 1
notice of its intent not to participate in the special urban archery season. When
consistent with the department's deer management objectives and subject to the
director's approval, a participating county may exclude from this season a
geographic area or areas by submitting a clear description of such area or
areas in a certified letter to the department prior to April 1.

G. It shall be lawful to hunt antlerless deer during the
special antlerless archery season with archery equipment from the Monday
following the last Sunday in March through the last Sunday in April, both dates
inclusive, in Arlington, Fairfax, Loudoun, and Prince William counties
(including the cities and towns within).

The amendments modify (i) the 2017 and 2018 seasons for the
harvest of crabs by crab pot, (ii) the time for harvesting at a higher bushel
limit, and (iii) the start date of the lower bushel limit season.

4VAC20-270-40. Season limits.

A. In 20162017, the lawful season for the
commercial harvest of crabs by crab pot shall be March 171
through December 20November 30. In 20172018, the
lawful season for the commercial harvest of crabs by crab pot shall be March 117 through December 20November 30. For all other lawful
commercial gear used to harvest crabs, as described in 4VAC20-1040, the lawful
seasons for the harvest of crabs shall be April 21 through October 31 in
2016 and April 1 through October 31 in 2017.

B. It shall be unlawful for any person to harvest crabs or to
possess crabs on board a vessel, except during the lawful season, as described
in subsection A of this section.

C. It shall be unlawful for any person knowingly to place,
set, fish, or leave any hard crab pot in any tidal waters of Virginia from
December 21, 20161, 2017, through February 28, 2017March
16, 2018. It shall be unlawful for any person knowingly to place, set,
fish, or leave any lawful commercial gear used to harvest crabs, except any
hard crab pot, or as described in 4VAC20-460-25, in any tidal waters of
Virginia from November 1, 20162017, through March 31, 20172018.

D. It shall be unlawful for any person knowingly to place,
set, fish, or leave any fish pot in any tidal waters from March 12 through
March 16, except as provided in subdivisions 1 and 2 of this subsection.

1. It shall be lawful for any person to place, set, or fish
any fish pot in those Virginia waters located upriver of the following boundary
lines:

a. In the James River the boundary shall be a line connecting
Hog Point and the downstream point at the mouth of College Creek.

b. In the York River the boundary lines shall be the Route 33
bridges at West Point.

c. In the Rappahannock River the boundary line shall be the
Route 360 bridge at Tappahannock.

d. In the Potomac River the boundary line shall be the Route
301 bridge that extends from Newberg, Maryland to Dahlgren, Virginia.

2. This subsection shall not apply to legally licensed eel
pots as described in 4VAC20-500-50.

E. It shall be unlawful for any person to place, set, or fish
any number of fish pots in excess of 10% of the amount allowed by the gear
license limit, up to a maximum of 30 fish pots per vessel, when any person on
that vessel has set any crab pots.

1. This subsection shall not apply to fish pots set in the
areas described in subdivision D 1 of this section.

2. This subsection shall not apply to legally licensed eel
pots as described in 4VAC20-500.

3. This subsection shall not apply to fish pots constructed of
a mesh less than one-inch square or hexagonal mesh.

A. Any barrel used by a harvester to contain or possess any
amount of crabs will be equivalent in volume to no more than 3 bushels of
crabs.

B. From July 5, 20162017, through November
15, 2016October 31, 2017, and April 1, 20172018,
through July 4, 20172018, any Commercial Fisherman Registration
Licensee legally licensed for any crab pot license, as described in
4VAC20-270-50 B, shall be limited to the following maximum daily harvest and
possession limits for any of the following crab pot license categories:

1. 10 bushels, or 3 barrels and 1 bushel, of crabs if licensed
for up to 85 crab pots.

2. 14 bushels, or 4 barrels and 2 bushels, of crabs if
licensed for up to 127 crab pots.

3. 18 bushels, or 6 barrels, of crabs if licensed for up to
170 crab pots.

4. 29 bushels, or 9 barrels and 2 bushels, of crabs if
licensed for up to 255 crab pots.

5. 47 bushels, or 15 barrels and 2 bushels, of crabs if
licensed for up to 425 crab pots.

C. From November 16, 20161, 2017, through December
20, 2016November 30, 2017, and March 1, 201717, 2018,
through March 31, 20172018, any Commercial Fisherman
Registration Licensee legally licensed for any crab pot license, as described
in 4VAC20-270-50 B, shall be limited to the following maximum daily harvest and
possession limits for any of the following crab pot license categories:

1. 8 bushels, or 2 barrels and 2 bushels, of crabs if licensed
for up to 85 crab pots.

2. 10 bushels, or 3 barrels and 1 bushel, of crabs if licensed
for up to 127 crab pots.

3. 13 bushels, or 4 barrels and 1 bushel, of crabs if licensed
for up to 170 crab pots.

4. 21 bushels, or 7 barrels, of crabs if licensed for up to
255 crab pots.

5. 27 bushels, or 9 barrels, of crabs if licensed for up to
425 crab pots.

D. When a single harvester or multiple harvesters are on
board any vessel, that vessel's daily harvest and possession limit shall be
equal to only one daily harvest and possession limit, as described in
subsections B and C of this section, and that daily limit shall correspond to
the highest harvest and possession limit of only one licensee on board that
vessel.

E. When transporting or selling one or more legal crab pot
licensee's crab harvest in bushels or barrels, any agent shall possess either
the crab pot license of that one or more crab pot licensees or a bill of lading
indicating each crab pot licensee's name, address, Commercial Fisherman
Registration License number, date, and amount of bushels or barrels of crabs to
be sold.

F. If any police officer finds crabs in excess of any lawful
daily bushel, barrel, or vessel limit, as described in this section, that
excess quantity of crabs shall be returned immediately to the water by the
licensee or licensees who possess that excess over lawful daily harvest or
possession limit. The refusal to return crabs, in excess of any lawful daily
harvest or possession limit, to the water shall constitute a separate violation
of this chapter.

G. When any person on board any boat or vessel possesses a
crab pot license, it shall be unlawful for that person or any other person
aboard that boat or vessel to possess a seafood buyers boat license and buy any
crabs on any day.

4VAC20-270-55. Minimum size limits.

A. From March 117 through July 15, it shall be
unlawful for any person to harvest, possess, sell, or offer for sale more than
10 peeler crabs, per United States standard bushel, or 5.0% of peeler crabs in
any other container, that measure less than 3-1/4 inches across the shell from
tip to tip of the longest spikes. From July 16 through December 20November
30, it shall be unlawful for any person to harvest, possess, sell, or offer
for sale more than 10 peeler crabs, per United States standard bushel, or 5.0%
of peeler crabs in any other container, that measure less than 3-1/2 inches
across the shell from tip to tip of the longest spikes, except as described in
subsections B and C of this section.

B. From July 16 through December 20November 30,
it shall be unlawful for any person to harvest, possess, sell, or offer for
sale more than 10 peeler crabs, per United States standard bushel, or 5.0% of
peeler crabs in any other container, that are harvested from waters on the
ocean side of Accomack and Northampton Counties and measure less than 3-1/4 inches
across the shell from tip to tip of the longest spikes, except as described in
subsection C of this section.

C. In the enforcement of these peeler crab minimum size
limits aboard a vessel, the marine police officer shall select a single
container of peeler crabs of his choosing to determine if the contents of that
container violate the minimum size and tolerance described in this section. If
the officer determines the contents of the container are in violation, then the
officer shall return all peeler crabs on board the vessel to the water alive.

D. It shall be unlawful for any person to take, catch,
harvest, possess, sell or offer for sale, or to destroy in any manner, any soft
crab that measures less than 3-1/2 inches across the shell from tip to tip of
the longest spikes.

VA.R. Doc. No. R17-5190; Filed June 28, 2017, 7:38 a.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Emergency Regulation

Title of Regulation: 4VAC20-490. Pertaining to Sharks (amending 4VAC20-490-42, 4VAC20-490-46).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the
Coded of Virginia.

A. For the 12-month period ofFrom May 1,
2016,of the current calendar year through April 30, 2017of
the following calendar year, the spiny dogfish commercial spiny
dogfish landings quota shall be limited to 4,356,9444,220,814
pounds.

B. It shall be unlawful for any person to take, harvest, or
possess aboard any vessel or to land in Virginia any spiny dogfish harvested
from federal waters for commercial purposes after it has been announced that
the federal quota for spiny dogfish has been taken.

C. It shall be unlawful for any person to take, harvest, or
possess aboard any vessel or to land in Virginia more than 5,250 pounds of
spiny dogfish per day for commercial purposes. However, if landings are less
than 80% of the quota specified in subsection A of this section, by February
15, 2017, it shall be unlawful to take, harvest, or possess aboard any vessel
or to land in Virginia more than 6,000 pounds of spiny dogfish per day for
commercial purposes.

D. It shall be unlawful for any person to harvest or to land
in Virginia any spiny dogfish for commercial purposes after the quota specified
in subsection A of this section has been landed and announced as such.

E. Any spiny dogfish harvested from state waters or federal
waters, for commercial purposes, shall only be sold to a federally permitted
dealer.

F. It shall be unlawful for any buyer of seafood to receive
any spiny dogfish after any commercial harvest or landing quota described in
this section has been attained and announced as such.

4VAC20-490-46. Spiny dogfish monitoring requirements.

A. Any Virginia seafood buyer purchasing spiny dogfish
shall provide written reports to the Marine Resources Commission of weekly
landings for each registered commercial fisherman to include that commercial
fisherman's registration license number and exact weight of the spiny dogfish
landed, in pounds, until it is projected and announced that 80% of Virginia
spiny dogfish quota has been landed.

B. When it has been projected and announced by the
Marine Resources Commission that 80% of the Virginia spiny dogfish quota has
been landed, each Virginia seafood buyer shall call the Marine Resources
Commission's interactive voice recording system on a daily basis to report the daily
landings for each registered commercial fisherman to include the commercial
fisherman's registration license number and exact weight of spiny dogfish landedreceived or purchased, in pounds, until it is projected and announced that
the Virginia spiny dogfish quota has been landed and the fishery closed.

VA.R. Doc. No. R17-5189; Filed June 28, 2017, 7:36 a.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Emergency Regulation

Title of Regulation: 4VAC20-1140. Prohibition of Crab
Dredging in Virginia Waters (amending 4VAC20-1140-20).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the
Code of Virginia.

The amendment closes the crab dredge fishery season from
December 1, 2017, through March 31, 2018.

4VAC20-1140-20. Crab dredging prohibited.

In accordance with the provisions of § 28.2-707 of the Code
of Virginia, the crab dredging season of December 1, 20162017,
through March 31, 20172018, is closed, and it shall be unlawful
to use a dredge for catching crabs from the waters of the Commonwealth during
that season.

On January 14, 2016, the State Water Control Board adopted
revisions to the Water Quality Standards in 9VAC25-260-5, 9VAC25-260-50,
9VAC25-260-140, 9VAC25-260-155, 9VAC25-260-185, 9VAC25-260-187, 9VAC25-260-310,
9VAC25-260-390, 9VAC25-260-400, 9VAC25-260-410, 9VAC25-260-415, 9VAC25-260-440,
9VAC25-260-450, 9VAC25-260-460, 9VAC25-260-470, 9VAC25-260-510, 9VAC25-260-520,
9VAC25-260-530, and 9VAC25-260-540. These revisions relate to water quality
criteria, use designations, antidegradation, and other policies related to
water quality. The amendments were published as final regulations in 32:26 VA.R. 3461-3542 August 22, 2016,
to be effective upon the agency filing notice of U.S. Environmental Protection
Agency (EPA) approval with the Registrar of Regulations. The State Water
Control Board received a letter from Dominique Lueckenhoff, EPA Region III
Regional Acting Director, Water Protection Division, dated June 5, 2017, that
approved the amendments except for the amendment to 9VAC25-260-460, which
removed a natural trout waters designation from Lovills Creek Lake; approval of
that amendment was deferred. Therefore, the amendments to 9VAC25-260 in this
regulatory action are effective as regulation with the exception of the
EPA-deferred amendment in 9VAC25-260-460.

Basis: Section 32.1-325 of the Code of Virginia grants
the Board of Medical Assistance Services the authority to administer and amend
the Plan for Medical Assistance, and § 32.1-324 of the Code of Virginia
authorizes the Director of the Department of Medical Assistance Services (DMAS)
to administer and amend the Plan for Medical Assistance according to the
board's requirements. The Medicaid authority as established by § 1902(a) of the
Social Security Act (42 USC § 1396a) provides governing authority for
payments for services.

Purpose: At present, DMAS does not cover LDCT screening
for adults as a preventive service. There is evidence that this policy puts
adults at increased risk of developing advanced-stage lung cancer. This
regulatory action will permit DMAS to cover LDCT screenings for at-risk adults,
thereby enabling DMAS to help make further reductions in lung cancer morbidity
and mortality. Additionally, DMAS would align itself with established federal
recommendations that support LDCT screening.

These regulatory changes will improve the health, safety, and
welfare of the affected Medicaid individuals by providing care coordination and
well-person preventive services. Additionally, this regulation will provide
Medicaid coverage of annual LDCT lung cancer screening as a preventive measure,
in the absence of symptoms, for at-risk beneficiaries.

Substance: DMAS has determined that this regulatory
action is needed to increase the potential to diagnose lung cancer at earlier
stages and reduce incidences of advanced-stage lung cancer and to help reduce
the costs associated with lung cancer. The U.S. Preventive Services Task Force
(USPSTF), an independent panel of experts authorized by Congress to make
recommendations about specific preventive services for patients with no signs
or symptoms of disease, issued a statement in 2013 giving LDCT scans a grade of
"B" and recommending that certain individuals get an LDCT scan every
year. Criteria include individuals between the ages of 55 and 80 years who are
current smokers, have quit smoking within the last 15 years, or have a history
of smoking at least one pack of cigarettes per day for 30 or more years.

The proposed amendment to 12VAC30-50-220 aligns Medicaid
coverage with the coverage provided by Medicare and commercial health plans to
achieve consistency among the fee-for-service and the managed care organization
programs and to bring DMAS in line with USPSTF recommendations by providing for
LDCT scans for certain individuals.

Issues: USPSTF estimates that a minimum of 20,000 lives
can be saved each year through these preventive screenings. Nineteen percent of
adults in Virginia were current smokers over the last several years compared to
the national average of 17%. Additionally, according to the Centers for
Medicare and Medicaid Services, nationwide 37% of Medicaid insured individuals
smoke with total Medicaid expenditures attributable to smoking of nearly $22
billion annually, representing 11% of all expenditures. According to a Quit Now
report, approximately 25% of Medicaid insured individuals in Virginia were
current smokers in 2015, a figure that has been as high as 27% in the past
three fiscal years. DMAS currently covers LDCT for adults when it is deemed
medically necessary (i.e., symptoms are present). As a result, lung cancer in
the Medicaid population can go undetected until its third and fourth stages when
treatment is most costly and morbidity is at its highest. Nationwide, only 16%
of lung cancers are stage one (localized) at the time of diagnosis when the
five-year survival rate is highest (nearly 55%), while 22% are stage two
(having spread regionally) and 57% are stage three (having spread distantly).
Tragically, the five-year survival rate is only 4.0% for stage three lung
cancer and just over 27% for stage two.

In Virginia, there were 3,041 inpatient hospitalizations for
lung cancer in 2012 (non-Medicaid as well as Medicaid) at a total cost of about
$167 million. The average length of stay was 6.5 days, and the average cost per
stay was $55,122.16. Moreover, because many studies only examine direct medical
costs incurred during hospitalization, these figures underestimate the true
economic consequences of undetected lung cancer.

By covering LDCT screenings as a preventive service, DMAS can
help reduce lung cancer morbidity and mortality in Virginia. The procedure is
safe, with no adverse effects to the recipient.

To establish the population that would benefit from preventive
LDCT screenings, DMAS begins with the at-risk age range of individuals from 55
to 80 years of age. Since Medicare coverage (which begins at age 65) includes
this service as a preventive measure, we can shorten the range to 55 to 64
years of age. For the past three state fiscal years, Virginia's average monthly
Medicaid enrollment in this age range was approximately 21,684.17 Next, given
that nearly 25% of Medicaid beneficiaries are current smokers, we can assume
the at-risk population to be roughly 5,421.

The primary advantages to the public, the Agency, and the
Commonwealth from this regulatory package include enhanced service delivery to
Medicaid beneficiaries, and greater consistency between Virginia regulations
and established federal recommendations which support LDCT screening. There are
no disadvantages to the public or the Commonwealth as a result of these
regulatory changes.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to
Chapter 780 of the 2016 Acts of Assembly, the Director (Director) of the
Department of Medical Assistance Services (DMAS) proposes to provide Medicaid
coverage of annual low-dose computed tomography (LDCT) lung cancer screening as
a preventive measure, in the absence of symptoms, for at-risk beneficiaries.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. Under the current regulation DMAS
does not cover LDCT screening for adults as a preventive service under
Medicaid. The Director proposes to specify that "Low-dose computed
tomography lung cancer screening shall be covered annually for individuals
between the ages of 55 years and 80 years who are current smokers, have quit
smoking within the last 15 years, or have a history of smoking at least one
pack of cigarettes per day for 30 or more years." Lung cancer is by far
the leading cause of cancer deaths accounting for 26% of all cancer deaths
nationwide.1 Each year, more people die of lung cancer than of
colon, breast, and prostate cancers combined.2 Nationally,
individuals with lung cancer have a five-year relative survival rate of 54% if
cancer is diagnosed in its earliest (localized) stage.3
Unfortunately, most lung cancers have spread widely and are at an advanced
stage by the time that they are first detected, making them very difficult to
treat or cure. In Virginia, only 19% of lung cancers were diagnosed at the
localized stage between 2007 and 2011.4

LDCT can be used to screen for those at high risk for lung
cancer and help detect cancer earlier, thus lowering the risk of death. These
screenings are safe for the patient, using lower amounts of radiation than a
standard chest scan and not requiring the use of intravenous contrast dye.5
A large clinical trial conducted by the U.S. National Institutes of Health,
National Cancer Institute (the National Lung Screening Trial) compared LDCT
screenings to standard chest x-rays in people at high risk of lung cancer to
ascertain if these scans could help lower the risk of dying from lung cancer.
The researchers concluded that LDCT scans provided more detailed pictures than
chest x-rays and are better at finding small abnormalities in the lungs.6 Additionally,
certain cancer cells were detected at the earliest stage more frequently by
LDCT screenings than by standard chest x-rays.7 The researchers also
found that people who got LDCT had a 16% lower chance of dying from lung cancer
than those who got chest x-rays.8

Thus to the extent that covering LDCT lung cancer screening as
a preventive measure in the absence of symptoms for at-risk beneficiaries leads
to increased use of early LDCT use, the proposal would likely somewhat increase
lung cancer survival rates in the Commonwealth. The annual cost for covering
the LDCT lung cancer screening has been estimated to be $118,650 annually.9
The benefits of likely increased survival rates would for most observers exceed
the estimated costs.

Businesses and Entities Affected. The proposed amendment
potentially affects health care facilities that provide lung cancer screenings
and Medicaid recipients between the ages of 55 years and 80 years who are
current smokers, have quit smoking within the last 15 years, or have a history
of smoking at least one pack of cigarettes per day for 30 or more years.

Projected Impact on Employment. The proposed amendment may have
a positive impact on employment for technicians who conduct LDCT lung cancer
screenings.

Effects on the Use and Value of Private Property. The proposed
amendment does not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendment does not
affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment does not
significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect
businesses.

Localities. The proposed amendment does not adversely affect
localities.

Other Entities. The proposed amendment does not adversely
affect other entities.

_________________________________________________

1 Source: U.S. National Institutes of Health, National
Cancer Institute.

9 The $118,650 figure is the amount listed in the state
budget for this service.

Agency's Response to Economic Impact Analysis: The
agency has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and raises no issues with this analysis.

Summary:

Item 306 OOOO of Chapter 780 of the 2016 Acts of Assembly,
the 2016 Appropriation Act, directs the Department of Medical Assistance
Services to cover low-dose computed tomography lung cancer screenings for
high-risk adults. The proposed amendment conforms the regulation to this
requirement.

12VAC30-50-220. Other diagnosticDiagnostic,
screening, preventive, and rehabilitative services, i.e., other than
those provided elsewhere in this plan.

A. Diagnostic services are provided but only when necessary
to confirm a diagnosis.

B. Screening services.

1. Screening mammograms for the female recipient population
aged 35 and over shall be covered, consistent with the guidelines published by
the American Cancer Society.

2. Screening PSA (prostate specific antigen) and the related
DRE (digital rectal examination) for males shall be covered, consistent with
the guidelines published by the American Cancer Society.

3. Screening Pap smears shall be covered annually for females,
consistent with the guidelines published by the American Cancer Society.

4. Screening services for colorectal cancer, specifically
screening with an annual fecal occult blood test, flexible sigmoidoscopy or
colonoscopy, or in appropriate circumstances radiologic imaging, in accordance
with the most recently published recommendations established by the American
College of Gastroenterology, in consultation with the American Cancer Society,
for the ages, family histories, and frequencies referenced in such
recommendations.

5. Low-dose computed tomography lung cancer screening shall
be covered annually for individuals between the ages of 55 years and 80 years
who are current smokers, have quit smoking within the last 15 years, or have a
history of smoking at least one pack of cigarettes per day for 30 or more
years.

C. Maternity length of stay and early discharge.

1. If the mother and newborn, or the newborn alone, are
discharged earlier than 48 hours after the day of delivery, DMAS will cover one
early discharge follow-up visit as recommended by the physicians in accordance
with and as indicated by the "Guidelines for Perinatal Care," 4th
Edition, August 1997, as developed by the American Academy of Pediatrics and
the American College of Obstetricians and Gynecologists. The mother and
newborn, or the newborn alone if the mother has not been discharged, must meet
the criteria for early discharge to be eligible for the early discharge
follow-up visit. This early discharge follow-up visit does not affect or apply
to any usual postpartum or well-baby care or any other covered care to which
the mother or newborn is entitled; it is tied directly to an early discharge.

2. The early discharge follow-up visit must be provided as
directed by a physician. The physician may coordinate with the provider of his
choice to provide the early discharge follow-up visit, within the following
limitations. Qualified providers are those hospitals, physicians, nurse
midwives, nurse practitioners, federally qualified health clinics, rural health
clinics, and health departments' clinics that are enrolled as Medicaid providers
and are qualified by the appropriate state authority for delivery of the
service. The staff providing the follow-up visit, at a minimum, must be a
registered nurse having training and experience in maternal and child health.
The visit must be provided within 48 hours of discharge.

Basis: Section 32.1-325 of the Code of Virginia grants
to the Board of Medical Assistance Services the authority to administer and
amend the Plan for Medical Assistance and to make, adopt, promulgate, and
enforce regulations to implement the state plan, and § 32.1-324 of the Code of
Virginia authorizes the Director of the Department of Medical Assistance
Services (DMAS) to administer and amend the Plan for Medical Assistance
according to the board's requirements. The Medicaid authority as established by
§ 1902(a) of the Social Security Act (42 USC § 1396a) provides
governing authority for payments for services.

Section 1905 of the Social Security Act requires state Medicaid
programs to provide early and periodic screening, diagnosis, and treatment
(EPSDT) services for individuals who are eligible under the plan and are
younger than the age of 21 years, to include "Such other necessary health
care, diagnostic services, treatment, and other measures described in § 1905(a)
to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services, whether or not such services
are covered under the State plan." If an individual is determined through
an EPSDT screening to need a medical service that is not otherwise covered in
Virginia's State Plan, then this provision in federal law requires the
Commonwealth to cover that service. Behavioral therapy services are an EPSDT
service.

Purpose: The proposed regulatory action is intended to
promote an improved quality of Medicaid-covered behavioral therapy services
provided to children and adolescents. The proposed regulation will
differentiate Medicaid's coverage of behavioral therapy and applied behavior
analysis services from coverage of community mental health and other
developmental services. This regulatory action is essential to protect the
health, safety, and welfare of these affected individuals and to ensure the
quality of services rendered to children and adolescents who demonstrate the
medical need for EPSDT behavioral therapy services. Regulations are needed to
establish clear criteria for Medicaid payment of these services. Regulatory
action is needed to ensure that Medicaid individuals and their families and
service providers are well informed about service specifications prior to
receiving or providing these services. These services will allow children
receiving services to improve interactions with their schools, families,
communities, future employers, and jobs and thus benefit a broad range of
citizens. These regulations are not expected to negatively affect the health,
safety, or welfare of citizens of the Commonwealth.

Substance: Currently, Medicaid payment for behavioral
therapy services is being authorized on an individual case basis under the
authority provided by the basic EPSDT definition found in 12VAC30-50-130 B. The
absence of consistently applied definitions, service requirements, required
provider qualifications, and quality assurance standards might result in
arbitrary decisions that cannot be sustained in an appeal. With increasing
numbers of children being diagnosed with autism and autism spectrum disorders
in need of such services, the individual-case-basis method of covering these
services is no longer satisfactory or appropriate.

DMAS proposes to initiate uniform coverage of behavioral
therapy services for individuals under the age of 21 years who meet the medical
necessity criteria. Trained professionals rendering early intensive treatment,
including applied behavior analysis techniques, has been shown to be effective
in ameliorating impairments in major life functions arising from autism
spectrum disorders and other diagnosed conditions. Coverage of EPSDT behavioral
therapy services will not cause more individuals to be eligible for this
service but will ensure appropriate treatment of eligible children who are
already in the care delivery system as well as those initiating behavioral
therapy services.

Prior to treatment, an appropriate health care practitioner
conducts an intake documenting the child's medical and psychiatric diagnosis
and describing how service needs can best be met through behavioral therapy
interventions. The assessment includes a description of the behavior or
behaviors targeted for treatment, including data on the frequency, duration, and
intensity of the behavior or behaviors. An individualized service plan (ISP) is
developed based on the assessment. The ISP describes each targeted behavior,
the behavioral modification strategy to be used to manage each targeted
behavior, and the measurement and data collection methods to be used for each
targeted behavior in the plan.

Behavioral analysis treatment strategies are systematic
interventions that are primarily provided in the family home. Family training
and counseling related to the implementation of the behavioral therapy shall be
included as part of the behavioral therapy service. Behavioral therapy may be
intermittently provided in community settings when approved settings are deemed
by DMAS or its contractor as medically necessary treatment. These services are
designed to enhance communication skills and decrease maladaptive patterns of
behavior that, if left untreated, could lead to more complex problems and the
need for a greater or a more restrictive level of care, such as institutionalization.
Successful implementation of behavioral therapy services requires the
participation of a parent or guardian.

The service goal is to ensure that the member's family is
trained to successfully manage clinically designed behavioral modification
strategies in the home setting. The family involvement in therapy is meant to
increase the child's adaptive functioning by training the family in effective
methods of behavioral modification strategies. Family members do not have to be
present during all hours of therapy. Family members must be present and
participate with their treatment plan objectives in an effective manner as
documented by the clinical supervisor.

EPSDT behavioral therapy services are intended to improve the
functional behaviors of the member by integrating multidisciplinary clinical
and medical services with the behavioral therapy protocol to increase the
member's adaptive functioning and communicative abilities. Treatment results
must be documented to indicate a generalization of behaviors across different
settings to maintain the targeted functioning outside of the treatment setting
in the patient's residence and the larger community within which the individual
resides.

Behavioral therapy services are currently excluded from
Medicaid managed care contracts and reimbursed by the behavioral health
services administrator (currently, Magellan) on a fee-for-service basis.
Technical corrections are made to the catchlines of several existing services
in 12VAC30-60-61 to create consistency in regulatory text and improve
readability.

Issues: The proposed regulation is advantageous to
individuals and their families by ensuring that Medicaid funded behavioral
therapy services are provided by licensed practitioners with the education,
experience, and clinical training necessary to effectively correct or
ameliorate problematic behaviors through the use of evidence based behavior
modification principles. Regulatory action will ensure that individuals, their
families, and service providers are well informed about Medicaid service
requirements prior to receiving or providing these services, thereby avoiding
DMAS recovery of provider payments made for inappropriate or inadequate
services. This regulatory action will also support the efforts of DMAS and its
contractors to provide effective care coordination and administrative oversight
of service delivery by clarifying provider requirements and service delivery
requirements in the Virginia Administrative Code. The primary advantage to the
Commonwealth, in the setting of these criteria and standards, will be the
statewide uniform application of policies that should result in fewer costly
provider appeals and reduced risks for fraud, waste, and abuse. There are no
disadvantages to the Commonwealth for this action.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The proposed
regulation establishes in the Virginia Administrative Code uniform and specific
standards for diagnosis and provision of behavioral therapy services under
Medicaid for young people from birth through the age of 21.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. The proposed regulation establishes
in the Virginia Administrative Code Medicaid coverage for behavioral therapy
services for young people from birth through the age of 21 under the authority
of the Early and Periodic Screening, Diagnosis and Treatment program. To be
covered for this service, children and adolescents must have autism or autism
spectrum disorders, or other similar developmental delays as demonstrated by
their lack of communication skills or lack of interaction with their
environments.

Prior to 2012 these services were already covered by Medicaid,
but there were no uniform standards. The coverage decisions were made on a
case-by-case basis. In 2012, the Department of Medical Assistance Services
(DMAS) adopted a service manual setting out uniform rules for coverage and
provision of behavioral therapy services (e.g., rules for provider enrollment,
eligibility criteria, limitations, service authorization requirements, etc.).
In December 2013, DMAS contracted Magellan Health to administer the provision
of behavioral therapy services. Selection of a behavioral services
administrator to run the program marked the beginning of a significant increase
in provision of these services. In fiscal year 2013, 524 individuals received
these services at a cost of approximately $12.2 million. In calendar year 2014,
$28.2 million was spent on services provided to 1,831 individuals. In calendar
year 2015, the expenditures and recipients increased to $41.6 million and
2,313, respectively. In calendar year 2016, expenditures stood at $60.6 million
and the number of recipients was 2,996.

While the provision of behavioral therapy services has grown
significantly in the recent past, the impact of the proposed regulation on
utilization is expected to be neutral. These services have been provided
according to the uniform standards set out in the service manual since 2012.
Consistent with the service manual, this action specifies in the regulation the
behavioral service requirements, medical necessity criteria, provider clinical
assessment and intake procedures, service planning and progress measurement
requirements, care coordination, clinical supervision, and other standards.

The main effect of the proposed changes is establishing clear
criteria for Medicaid payment of these services in the Virginia Administrative
Code and consequently providing legal basis for the programs administration.
Having clear criteria in regulations is also expected to help protect the
health, safety, and welfare of the affected children by improving the
uniformity of service quality across providers.

Businesses and Entities Affected. As of August 2016, 348
behavioral therapy providers were credentialed with Magellan (only 89 of which
actively provided services in 2016) and there were 488 licensed behavioral
analysts and 103 licensed assistant behavioral analysts in the Commonwealth. In
2016, 2,996 individuals received these services.

Projected Impact on Employment. No significant impact on
employment is expected.

Effects on the Use and Value of Private Property. No
significant impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate
development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The Department of Medical Assistance
Services estimates that 90% of the current providers are small businesses. The
proposed amendments are not anticipated to create significant costs or other
effects on small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
amendments are not anticipated to have an adverse impact on small businesses.

Adverse Impacts:

Businesses. DMAS estimates that 10% of the current providers
are non-small businesses. The proposed amendments are not anticipated to create
significant costs or other effects on non-small businesses.

Localities. The proposed amendments will not adversely affect
localities.

Other Entities. The proposed amendments will not adversely
affect other entities.

Agency's Response to Economic Impact Analysis: The
agency has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and raises no issues with this analysis.

Summary:

The proposed amendments establish Medicaid coverage for
behavioral therapy services for children under the authority of the Early and
Periodic Screening, Diagnosis and Treatment (EPSDT) program. EPSDT is a
mandatory Medicaid-covered service that offers preventive, diagnostic, and treatment
health care services to young people from birth through the age of 21 years. To
be covered for this service, a child must have a psychiatric diagnosis relevant
to the need for behavioral therapy services, including autism, autism spectrum
disorders, or other similar developmental delays and must meet the medical
necessity criteria. The proposed regulations define the behavioral therapy
service requirements, medical necessity criteria, provider clinical assessment
and intake procedures, service planning and progress measurement requirements,
care coordination, clinical supervision, and other standards to assure quality.
The behavioral therapy service will be reimbursed by DMAS outside of the
Medallion 3 managed care contracts.

12VAC30-50-130. Nursing facility services, EPSDT, including
school health services and family planning.

A. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.

Service must be ordered or prescribed and directed or
performed within the scope of a license of the practitioner of the healing
arts.

B. Early and periodic screening and diagnosis of individuals
under 21 years of age, and treatment of conditions found.

1. Payment of medical assistance services shall be made on
behalf of individuals under 21 years of age, who are Medicaid eligible, for
medically necessary stays in acute care facilities, and the accompanying
attendant physician care, in excess of 21 days per admission when such services
are rendered for the purpose of diagnosis and treatment of health conditions
identified through a physical examination.

2. Routine physicals and immunizations (except as provided
through EPSDT) are not covered except that well-child examinations in a private
physician's office are covered for foster children of the local social services
departments on specific referral from those departments.

3. Orthoptics services shall only be reimbursed if medically
necessary to correct a visual defect identified by an EPSDT examination or
evaluation. The department shall place appropriate utilization controls upon
this service.

4. Consistent with the Omnibus Budget Reconciliation Act of
1989 § 6403, early and periodic screening, diagnostic, and treatment services
means the following services: screening services, vision services, dental
services, hearing services, and such other necessary health care, diagnostic
services, treatment, and other measures described in Social Security Act §
1905(a) to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services and which are medically
necessary, whether or not such services are covered under the State Plan and
notwithstanding the limitations, applicable to recipients ages 21 and over,
provided for by § 1905(a) of the Social Security Act.

5. Community mental health services. These services in order
to be covered (i) shall meet medical necessity criteria based upon diagnoses
made by LMHPs who are practicing within the scope of their licenses and (ii)
are reflected in provider records and on providers' claims for services by
recognized diagnosis codes that support and are consistent with the requested
professional services.

a. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context clearly
indicates otherwise:

"Adolescent or child" means the individual receiving
the services described in this section. For the purpose of the use of these
terms, adolescent means an individual 12-20 years of age; a child means an
individual from birth up to 12 years of age.

"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS.

"Care coordination" means collaboration and sharing
of information among health care providers, who are involved with an
individual's health care, to improve the care.

"Certified prescreener" means an employee of the
local community services board or behavioral health authority, or its designee,
who is skilled in the assessment and treatment of mental illness and has
completed a certification program approved by the Department of Behavioral
Health and Developmental Services.

"Clinical experience" means providing direct
behavioral health services on a full-time basis or equivalent hours of
part-time work to children and adolescents who have diagnoses of mental illness
and includes supervised internships, supervised practicums, and supervised
field experience for the purpose of Medicaid reimbursement of (i) intensive
in-home services, (ii) day treatment for children and adolescents, (iii)
community-based residential services for children and adolescents who are
younger than 21 years of age (Level A), or (iv) therapeutic behavioral services
(Level B). Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be as
established by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"DBHDS" means the Department of Behavioral Health
and Developmental Services.

"DMAS" means the Department of Medical Assistance
Services and its contractor or contractors.

"EPSDT" means early and periodic screening,
diagnosis, and treatment.

"Human services field" means the same as the term is
defined by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"Individual service plan" or "ISP" means
the same as the term is defined in 12VAC30-50-226.

"LMHP-resident" or "LMHP-R" means the same
as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of Counseling.
For purposes of Medicaid reimbursement to their supervisors for services
provided by such residents, they shall use the title "Resident" in
connection with the applicable profession after their signatures to indicate
such status.

"LMHP-resident in psychology" or "LMHP-RP"
means the same as an individual in a residency, as that term is defined in
18VAC125-20-10, program for clinical psychologists. An LMHP-resident in
psychology shall be in continuous compliance with the regulatory requirements
for supervised experience as found in 18VAC125-20-65 and shall not perform the
functions of the LMHP-RP or be considered a "resident" until the
supervision for specific clinical duties at a specific site has been
preapproved in writing by the Virginia Board of Psychology. For purposes of
Medicaid reimbursement by supervisors for services provided by such residents,
they shall use the title "Resident in Psychology" after their
signatures to indicate such status.

"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" as defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be
considered a "supervisee" until the supervision for specific clinical
duties at a specific site is preapproved in writing by the Virginia Board of
Social Work. For purposes of Medicaid reimbursement to their supervisors for
services provided by supervisees, these persons shall use the title
"Supervisee in Social Work" after their signatures to indicate such
status.

"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized and member-specific progress notes are part of the
minimum documentation requirements and shall convey the individual's status,
staff interventions, and, as appropriate, the individual's progress, or lack of
progress, toward goals and objectives in the ISP. The progress notes shall also
include, at a minimum, the name of the service rendered, the date of the
service rendered, the signature and credentials of the person who rendered the
service, the setting in which the service was rendered, and the amount of time
or units/hours required to deliver the service. The content of each progress
note shall corroborate the time/units billed. Progress notes shall be
documented for each service that is billed.

"Psychoeducation" means (i) a specific form of
education aimed at helping individuals who have mental illness and their family
members or caregivers to access clear and concise information about mental
illness and (ii) a way of accessing and learning strategies to deal with mental
illness and its effects in order to design effective treatment plans and strategies.

"Psychoeducational activities" means systematic
interventions based on supportive and cognitive behavior therapy that
emphasizes an individual's and his family's needs and focuses on increasing the
individual's and family's knowledge about mental disorders, adjusting to mental
illness, communicating and facilitating problem solving and increasing coping
skills.

"Qualified mental health professional-child" or
"QMHP-C" means the same as the term is defined in 12VAC35-105-20.

"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-590.

"Qualified paraprofessional in mental health" or
"QPPMH" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-1370.

"Service-specific provider intake" means the
face-to-face interaction in which the provider obtains information from the
child or adolescent, and parent or other family member or members, as
appropriate, about the child's or adolescent's mental health status. It
includes documented history of the severity, intensity, and duration of mental
health care problems and issues and shall contain all of the following
elements: (i) the presenting issue/reason for referral, (ii) mental health
history/hospitalizations, (iii) previous interventions by providers and
timeframes and response to treatment, (iv) medical profile, (v) developmental
history including history of abuse, if appropriate, (vi) educational/vocational
status, (vii) current living situation and family history and relationships,
(viii) legal status, (ix) drug and alcohol profile, (x) resources and
strengths, (xi) mental status exam and profile, (xii) diagnosis, (xiii)
professional summary and clinical formulation, (xiv) recommended care and
treatment goals, and (xv) the dated signature of the LMHP, LMHP-supervisee,
LMHP-resident, or LMHP-RP.

"Services provided under arrangement" means the same
as defined in 12VAC30-130-850.

b. Intensive in-home services (IIH) to children and
adolescents under age 21 shall be time-limited interventions provided in the
individual's residence and when clinically necessary in community settings. All
interventions and the settings of the intervention shall be defined in the
Individual Service Plan. All IIH services shall be designed to specifically
improve family dynamics, provide modeling, and the clinically necessary
interventions that increase functional and therapeutic interpersonal relations
between family members in the home. IIH services are designed to promote
psychoeducational benefits in the home setting of an individual who is at risk
of being moved into an out-of-home placement or who is being transitioned to
home from an out-of-home placement due to a documented medical need of the
individual. These services provide crisis treatment; individual and family
counseling; communication skills (e.g., counseling to assist the individual and
his parents or guardians, as appropriate, to understand and practice
appropriate problem solving, anger management, and interpersonal interaction,
etc.); care coordination with other required services; and 24-hour emergency
response.

(1) These services shall be limited annually to 26 weeks.
Service authorization shall be required for Medicaid reimbursement prior to the
onset of services. Services rendered before the date of authorization shall not
be reimbursed.

(2) Service authorization shall be required for services to
continue beyond the initial 26 weeks.

(3) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(4) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

c. Therapeutic day treatment (TDT) shall be provided two or
more hours per day in order to provide therapeutic interventions. Day treatment
programs, limited annually to 780 units, provide evaluation; medication
education and management; opportunities to learn and use daily living skills
and to enhance social and interpersonal skills (e.g., problem solving, anger
management, community responsibility, increased impulse control, and
appropriate peer relations, etc.); and individual, group and family counseling.

(1) Service authorization shall be required for Medicaid
reimbursement.

(2) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(3) These services may be rendered only by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

d. Community-based services for children and adolescents under
21 years of age (Level A) pursuant to 42 CFR 440.031(d).

(1) Such services shall be a combination of therapeutic
services rendered in a residential setting. The residential services will
provide structure for daily activities, psychoeducation, therapeutic
supervision, care coordination, and psychiatric treatment to ensure the
attainment of therapeutic mental health goals as identified in the individual
service plan (plan of care). Individuals qualifying for this service must
demonstrate medical necessity for the service arising from a condition due to
mental, behavioral or emotional illness that results in significant functional
impairments in major life activities in the home, school, at work, or in the
community. The service must reasonably be expected to improve the child's
condition or prevent regression so that the services will no longer be needed.
The application of a national standardized set of medical necessity criteria in
use in the industry, such as McKesson InterQual® Criteria or an
equivalent standard authorized in advance by DMAS, shall be required for this
service.

(2) In addition to the residential services, the child must
receive, at least weekly, individual psychotherapy that is provided by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.

(3) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(4) Authorization shall be required for Medicaid
reimbursement. Services that were rendered before the date of service
authorization shall not be reimbursed.

(5) Room and board costs shall not be reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(6) These residential providers must be licensed by the
Department of Social Services, Department of Juvenile Justice, or Department of
Behavioral Health and Developmental Services under the Standards for Licensed
Children's Residential Facilities (22VAC40-151), Regulation Governing Juvenile
Group Homes and Halfway Houses (6VAC35-41), or Regulations for Children's
Residential Facilities (12VAC35-46).

(7) Daily progress notes shall document a minimum of seven
psychoeducational activities per week. Psychoeducational programming must
include, but is not limited to, development or maintenance of daily living
skills, anger management, social skills, family living skills, communication
skills, stress management, and any care coordination activities.

(8) The facility/group home must coordinate services with
other providers. Such care coordination shall be documented in the individual's
medical record. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.

(9) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
intakes and ISPs are set out in 12VAC30-60-61.

(10) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(1) Such services must be therapeutic services rendered in a
residential setting that provide structure for daily activities,
psychoeducation, therapeutic supervision, care coordination, and psychiatric
treatment to ensure the attainment of therapeutic mental health goals as
identified in the individual service plan (plan of care). Individuals
qualifying for this service must demonstrate medical necessity for the service
arising from a condition due to mental, behavioral or emotional illness that
results in significant functional impairments in major life activities in the
home, school, at work, or in the community. The service must reasonably be
expected to improve the child's condition or prevent regression so that the
services will no longer be needed. The application of a national standardized
set of medical necessity criteria in use in the industry, such as McKesson
InterQual® Criteria, or an equivalent standard authorized in advance
by DMAS shall be required for this service.

(2) Authorization is required for Medicaid reimbursement.
Services that are rendered before the date of service authorization shall not
be reimbursed.

(3) Room and board costs shall not be reimbursed. Facilities
that only provide independent living services are not reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(4) These residential providers must be licensed by the
Department of Behavioral Health and Developmental Services (DBHDS) under the
Regulations for Children's Residential Facilities (12VAC35-46).

(5) Daily progress notes shall document that a minimum of
seven psychoeducational activities per week occurs. Psychoeducational
programming must include, but is not limited to, development or maintenance of
daily living skills, anger management, social skills, family living skills,
communication skills, and stress management. This service may be provided in a
program setting or a community-based group home.

(6) The individual must receive, at least weekly, individual
psychotherapy and, at least weekly, group psychotherapy that is provided as
part of the program.

(7) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(8) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services that are based upon incomplete, missing, or outdated
service-specific provider intakes or ISPs shall be denied reimbursement.
Requirements for intakes and ISPs are set out in 12VAC30-60-61.

(9) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(10) The facility/group home shall coordinate necessary
services with other providers. Documentation of this care coordination shall be
maintained by the facility/group home in the individual's record. The
documentation shall include who was contacted, when the contact occurred, and
what information was transmitted.

6. Inpatient psychiatric services shall be covered for
individuals younger than age 21 for medically necessary stays in inpatient
psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2) for
the purpose of diagnosis and treatment of mental health and behavioral
disorders identified under EPSDT when such services are rendered by (i) a
psychiatric hospital or an inpatient psychiatric program in a hospital
accredited by the Joint Commission on Accreditation of Healthcare Organizations
or (ii) a psychiatric facility that is accredited by the Joint Commission on
Accreditation of Healthcare Organizations or the Commission on Accreditation of
Rehabilitation Facilities. Inpatient psychiatric hospital admissions at general
acute care hospitals and freestanding psychiatric hospitals shall also be
subject to the requirements of 12VAC30-50-100, 12VAC30-50-105, and
12VAC30-60-25. Inpatient psychiatric admissions to residential treatment
facilities shall also be subject to the requirements of Part XIV (12VAC30-130-850
et seq.) of 12VAC30-130.

a. The inpatient psychiatric services benefit for individuals
younger than 21 years of age shall include services defined at 42 CFR 440.160
that are provided under the direction of a physician pursuant to a certification
of medical necessity and plan of care developed by an interdisciplinary team of
professionals and shall involve active treatment designed to achieve the
child's discharge from inpatient status at the earliest possible time. The
inpatient psychiatric services benefit shall include services provided under
arrangement furnished by Medicaid enrolled providers other than the inpatient
psychiatric facility, as long as the inpatient psychiatric facility (i)
arranges for and oversees the provision of all services, (ii) maintains all
medical records of care furnished to the individual, and (iii) ensures that the
services are furnished under the direction of a physician. Services provided
under arrangement shall be documented by a written referral from the inpatient
psychiatric facility. For purposes of pharmacy services, a prescription ordered
by an employee or contractor of the facility who is licensed to prescribe drugs
shall be considered the referral.

b. Eligible services provided under arrangement with the inpatient
psychiatric facility shall vary by provider type as described in this
subsection. For purposes of this section, emergency services means the same as
is set out in 12VAC30-50-310 B.

c. Inpatient psychiatric services are reimbursable only when
the treatment program is fully in compliance with (i) 42 CFR Part 441 Subpart
D, specifically 42 CFR 441.151(a) and (b) and 441.152 through 441.156, and
(ii) the conditions of participation in 42 CFR Part 483 Subpart G. Each
admission must be preauthorized and the treatment must meet DMAS requirements for
clinical necessity.

d. Service limits may be exceeded based on medical necessity
for individuals eligible for EPSDT.

7. Hearing aids shall be reimbursed for individuals younger
than 21 years of age according to medical necessity when provided by practitioners
licensed to engage in the practice of fitting or dealing in hearing aids under
the Code of Virginia.

8. Behavioral therapy services shall be covered for
individuals under the age of 21 years.

a. Definitions. The following words and terms when used in
this subsection shall have the following meanings unless the context clearly
indicates otherwise:

"Behavioral therapy" means systematic
interventions provided by licensed practitioners acting within the scope of
practice defined under a Virginia Health Professions Regulatory Board and
covered as remedial care under 42 CFR 440.130(d) within the home to
individuals under 21 years of age. Behavioral therapy includes applied
behavioral analysis and is primarily provided in the family home. Family
counseling and training related to the implementation of the behavioral therapy
shall be included as part of the behavioral therapy service. Behavioral therapy
services shall be subject to clinical reviews and determined as medically
necessary. Behavioral therapy may be intermittently provided in community
settings when approved settings are deemed by DMAS or its contractor as
medically necessary treatment.

"Individual" means the child or adolescent under
the age of 21 who is receiving behavioral therapy services.

"Primary care provider" means a licensed medical
practitioner who provides preventive and primary health care and is responsible
for providing routine EPSDT screening and referral and coordination of other
medical services needed by the individual.

b. Behavioral therapy services shall be designed to enhance
communication skills and decrease maladaptive patterns of behavior, which if
left untreated, could lead to more complex problems and the need for a greater
or a more intensive level of care. The service goal shall be to ensure the
individual's family or caregiver is trained to effectively manage the
individual's behavior in the home using modification strategies. The services
shall be provided in accordance with the individual service plan and clinical assessment
summary.

c. Behavioral therapy services shall be covered when
recommended by the individual's primary care provider or other licensed
physician, licensed physician assistant, or licensed nurse practitioner and
determined by DMAS or its contractor to be medically necessary to correct or
ameliorate significant impairments in major life activities that have resulted
from either developmental, behavioral, or mental disabilities. Criteria for
medical necessity are set out in 12VAC30-60-61 H. Service-specific provider
intakes shall be required at the onset of these services in order to receive
authorization for reimbursement. Individual service plans (ISPs) shall be
required throughout the entire duration of services. The services shall be
provided in accordance with the individual service plan and clinical assessment
summary. These services shall be provided in settings that are natural or
normal for a child or adolescent without a disability, such as his home, unless
there is justification in the ISP, which has been authorized for reimbursement,
to include service settings that promote a generalization of behaviors across
different settings to maintain the targeted functioning outside of the
treatment setting in the patient's residence and the larger community within
which the individual resides. Covered behavioral therapy services shall
include:

2. School divisions may provide routine well-child screening
services under the State Plan. Diagnostic and treatment services that are
otherwise covered under early and periodic screening, diagnosis and treatment
services, shall not be covered for school divisions. School divisions to
receive reimbursement for the screenings shall be enrolled with DMAS as clinic
providers.

a. Children enrolled in managed care organizations shall
receive screenings from those organizations. School divisions shall not receive
reimbursement for screenings from DMAS for these children.

b. School-based services are listed in a recipient's
individualized education program (IEP) and covered under one or more of the
service categories described in § 1905(a) of the Social Security Act. These
services are necessary to correct or ameliorate defects of physical or mental
illnesses or conditions.

3. Service providersProviders shall be licensed
under the applicable state practice act or comparable licensing criteria by the
Virginia Department of Education, and shall meet applicable qualifications
under 42 CFR Part 440. Identification of defects, illnesses or conditions and
services necessary to correct or ameliorate them shall be performed by
practitioners qualified to make those determinations within their licensed
scope of practice, either as a member of the IEP team or by a qualified
practitioner outside the IEP team.

a. Service providersProviders shall be employed
by the school division or under contract to the school division.

b. Supervision of services by providers recognized in
subdivision 4 of this subsection shall occur as allowed under federal
regulations and consistent with Virginia law, regulations, and DMAS provider
manuals.

c. The services described in subdivision 4 of this subsection
shall be delivered by school providers, but may also be available in the
community from other providers.

d. Services in this subsection are subject to utilization
control as provided under 42 CFR Parts 455 and 456.

e. The IEP shall determine whether or not the services
described in subdivision 4 of this subsection are medically necessary and that
the treatment prescribed is in accordance with standards of medical practice.
Medical necessity is defined as services ordered by IEP providers. The IEP
providers are qualified Medicaid providers to make the medical necessity
determination in accordance with their scope of practice. The services must be
described as to the amount, duration and scope.

4. Covered services include:

a. Physical therapy, occupational therapy and services for
individuals with speech, hearing, and language disorders, performed by, or
under the direction of, providers who meet the qualifications set forth at 42
CFR 440.110. This coverage includes audiology services;

b. Skilled nursing services are covered under 42 CFR
440.60. These services are to be rendered in accordance to the licensing
standards and criteria of the Virginia Board of Nursing. Nursing services are
to be provided by licensed registered nurses or licensed practical nurses but
may be delegated by licensed registered nurses in accordance with the
regulations of the Virginia Board of Nursing, especially the section on
delegation of nursing tasks and procedures. The licensed practical nurse is
under the supervision of a registered nurse.

(1) The coverage of skilled nursing services shall be of a
level of complexity and sophistication (based on assessment, planning,
implementation and evaluation) that is consistent with skilled nursing services
when performed by a licensed registered nurse or a licensed practical nurse.
These skilled nursing services shall include, but not necessarily be limited to
dressing changes, maintaining patent airways, medication
administration/monitoring and urinary catheterizations.

(2) Skilled nursing services shall be directly and
specifically related to an active, written plan of care developed by a
registered nurse that is based on a written order from a physician, physician
assistant or nurse practitioner for skilled nursing services. This order shall
be recertified on an annual basis.

c. Psychiatric and psychological services performed by
licensed practitioners within the scope of practice are defined under state law
or regulations and covered as physicians' services under 42 CFR 440.50 or
medical or other remedial care under 42 CFR 440.60. These outpatient services
include individual medical psychotherapy, group medical psychotherapy coverage,
and family medical psychotherapy. Psychological and neuropsychological testing
are allowed when done for purposes other than educational diagnosis, school
admission, evaluation of an individual with intellectual disability prior to
admission to a nursing facility, or any placement issue. These services are
covered in the nonschool settings also. School providers who may render these
services when licensed by the state include psychiatrists, licensed clinical
psychologists, school psychologists, licensed clinical social workers,
professional counselors, psychiatric clinical nurse specialists, marriage and
family therapists, and school social workers.

d. Personal care services are covered under 42 CFR
440.167 and performed by persons qualified under this subsection. The personal
care assistant is supervised by a DMAS recognized school-based health
professional who is acting within the scope of licensure. This practitioner
develops a written plan for meeting the needs of the child, which is
implemented by the assistant. The assistant must have qualifications comparable
to those for other personal care aides recognized by the Virginia Department of
Medical Assistance Services. The assistant performs services such as assisting
with toileting, ambulation, and eating. The assistant may serve as an aide on a
specially adapted school vehicle that enables transportation to or from the
school or school contracted provider on days when the student is receiving a
Medicaid-covered service under the IEP. Children requiring an aide during
transportation on a specially adapted vehicle shall have this stated in the
IEP.

e. Medical evaluation services are covered as physicians'
services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR
440.60. Persons performing these services shall be licensed physicians,
physician assistants, or nurse practitioners. These practitioners shall
identify the nature or extent of a child's medical or other health related
condition.

f. Transportation is covered as allowed under 42 CFR
431.53 and described at State Plan Attachment 3.1-D (12VAC30-50-530).
Transportation shall be rendered only by school division personnel or
contractors. Transportation is covered for a child who requires transportation
on a specially adapted school vehicle that enables transportation to or from
the school or school contracted provider on days when the student is receiving
a Medicaid-covered service under the IEP. Transportation shall be listed in the
child's IEP. Children requiring an aide during transportation on a specially
adapted vehicle shall have this stated in the IEP.

g. Assessments are covered as necessary to assess or reassess
the need for medical services in a child's IEP and shall be performed by any of
the above licensed practitioners within the scope of practice. Assessments and
reassessments not tied to medical needs of the child shall not be covered.

5. DMAS will ensure through quality management review that
duplication of services will be monitored. School divisions have a
responsibility to ensure that if a child is receiving additional therapy
outside of the school, that there will be coordination of services to avoid
duplication of service.

D. Family planning services and supplies for individuals of
child-bearing age.

1. Service must be ordered or prescribed and directed or
performed within the scope of the license of a practitioner of the healing arts.

2. Family planning services shall be defined as those services
that delay or prevent pregnancy. Coverage of such services shall not include
services to treat infertility or services to promote fertility. Family planning
services shall not cover payment for abortion services and no funds shall be
used to perform, assist, encourage, or make direct referrals for abortions.

3. Family planning services as established by § 1905(a)(4)(C)
of the Social Security Act include annual family planning exams; cervical cancer
screening for women; sexually transmitted infection (STI) testing; lab services
for family planning and STI testing; family planning education, counseling, and
preconception health; sterilization procedures; nonemergency transportation to
a family planning service; and U.S. Food and Drug Administration approved
prescription and over-the-counter contraceptives, subject to limits in
12VAC30-50-210.

12VAC30-60-61. Services related to the Early and Periodic
Screening, Diagnosis and Treatment Program (EPSDT); community mental health
services for children; behavioral therapy services for children.

A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context indicates
otherwise:

"At risk" means one or more of the following: (i)
within the two weeks before the intake, the individual shall be screened by an
LMHP for escalating behaviors that have put either the individual or others at
immediate risk of physical injury; (ii) the parent/guardian is unable to manage
the individual's mental, behavioral, or emotional problems in the home and is
actively, within the past two to four weeks, seeking an out-of-home placement;
(iii) a representative of either a juvenile justice agency, a department of
social services (either the state agency or local agency), a community services
board/behavioral health authority, the Department of Education, or an LMHP, as
defined in 12VAC35-105-20, and who is neither an employee of nor consultant to
the intensive in-home (IIH) services or therapeutic day treatment (TDT)
provider, has recommended an out-of-home placement absent an immediate change
of behaviors and when unsuccessful mental health services are evident; (iv) the
individual has a history of unsuccessful services (either crisis intervention,
crisis stabilization, outpatient psychotherapy, outpatient substance abuse
services, or mental health support) within the past 30 days; (v) the treatment
team or family assessment planning team (FAPT) recommends IIH services or TDT
for an individual currently who is either: (a) transitioning out of residential
treatment facility Level C services, (b) transitioning out of a group home
Level A or B services, (c) transitioning out of acute psychiatric
hospitalization, or (d) transitioning between foster homes, mental health case
management, crisis intervention, crisis stabilization, outpatient
psychotherapy, or outpatient substance abuse services.

"Failed services" or "unsuccessful
services" means, as measured by ongoing behavioral, mental, or physical
distress, that the service or services did not treat or resolve the
individual's mental health or behavioral issues.

"Individual" means the Medicaid-eligible person
receiving these services and for the purpose of this section includes children
from birth up to 12 years of age or adolescents ages 12 through 20 years.

"Licensed assistant behavior analyst" means a
person who has met the licensing requirements of 18VAC85-150 and holds a valid
license issued by the Department of Health Professions.

"Licensed behavior analyst" means a person who
has met the licensing requirements of 18VAC85-150 and holds a valid license
issued by the Department of Health Professions.

"New service" means a community mental health
rehabilitation service for which the individual does not have a current service
authorization in effect as of July 17, 2011.

"Out-of-home placement" means placement in one or
more of the following: (i) either a Level A or Level B group home; (ii) regular
foster home if the individual is currently residing with his biological family
and, due to his behavior problems, is at risk of being placed in the custody of
the local department of social services; (iii) treatment foster care if the
individual is currently residing with his biological family or a regular foster
care family and, due to the individual's behavioral problems, is at risk of
removal to a higher level of care; (iv) Level C residential facility; (v)
emergency shelter for the individual only due either to his mental health or behavior
or both; (vi) psychiatric hospitalization; or (vii) juvenile justice system or
incarceration.

"Service-specific provider intake" means the
evaluation that is conducted according to the Department of Medical Assistance
Services (DMAS) intake definition set out in 12VAC30-50-130.

B. Utilization review requirements for all services in
this section.

1. The services described in this section shall be
rendered consistent with the definitions, service limits, and requirements
described in this section and in 12VAC30-50-130.

2. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

3. Individual service plans (ISPs) shall meet all of the
requirements set forth in 12VAC30-60-143 B 7.

C. IntensiveUtilization review of intensive
in-home (IIH) services for children and adolescents.

1. The service definition for intensive in-home (IIH) services
is contained in 12VAC30-50-130.

2. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from mental, behavioral or emotional
illness which results in significant functional impairments in major life
activities. Individuals must meet at least two of the following criteria on a
continuing or intermittent basis to be authorized for these services:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services or judicial system
are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

3. Prior to admission, an appropriate service-specific
provider intake, as defined in 12VAC30-50-130, shall be conducted by the
licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, or
LMHP-RP, documenting the individual's diagnosis and describing how service
needs can best be met through intervention provided typically but not solely in
the individual's residence. The service-specific provider intake shall describe
how the individual's clinical needs put the individual at risk of out-of-home
placement and shall be conducted face-to-face in the individual's residence.
Claims for services that are based upon service-specific provider intakes that
are incomplete, outdated (more than 12 months old), or missing shall not be
reimbursed.

4. An individual service plan (ISP) shall be fully completed,
signed, and dated by either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a
QMHP-C, or a QMHP-E and the individual and individual's parent/guardian within
30 days of initiation of services. The ISP shall meet all of the requirements
as defined in 12VAC30-50-226.

5. DMAS shall not reimburse for dates of services in which the
progress notes are not individualized and child-specific. Duplicated progress
notes shall not constitute the required child-specific individualized progress
notes. Each progress note shall demonstrate unique differences particular to
the individual's circumstances, treatment, and progress. Claim payments shall
be retracted for services that are supported by documentation that does not
demonstrate unique differences particular to the individual.

6. Services shall be directed toward the treatment of the
eligible individual and delivered primarily in the family's residence with the
individual present. As clinically indicated, the services may be rendered in
the community if there is documentation, on that date of service, of the
necessity of providing services in the community. The documentation shall
describe how the alternative community service location supports the identified
clinical needs of the individual and describe how it facilitates the
implementation of the ISP. For services provided outside of the home, there
shall be documentation reflecting therapeutic treatment as set forth in the ISP
provided for that date of service in the appropriately signed and dated
progress notes.

7. These services shall be provided when the clinical needs of
the individual put him at risk for out-of-home placement, as these terms are
defined in this section:

a. When services that are far more intensive than outpatient
clinic care are required to stabilize the individual in the family situation,
or

b. When the individual's residence as the setting for services
is more likely to be successful than a clinic.

The service-specific provider intake shall describe how the
individual meets either subdivision a or b of this subdivision.

8. Services shall not be provided if the individual is no
longer a resident of the home.

9. Services shall also be used to facilitate the transition to
home from an out-of-home placement when services more intensive than outpatient
clinic care are required for the transition to be successful. The individual
and responsible parent/guardian shall be available and in agreement to
participate in the transition.

10. At least one parent/legal guardian or responsible adult
with whom the individual is living must be willing to participate in the intensive
in-home services with the goal of keeping the individual with the family. In
the instance of this service, a responsible adult shall be an adult who lives
in the same household with the child and is responsible for engaging in therapy
and service-related activities to benefit the individual.

11. The enrolled service provider shall be licensed by
the Department of Behavioral Health and Developmental Services (DBHDS) as a
provider of intensive in-home services. The provider shall also have a provider
enrollment agreement with DMAS or its contractor in effect prior to the
delivery of this service that indicates that the provider will offer intensive
in-home services.

12. Services must only be provided by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E. Reimbursement shall
not be provided for such services when they have been rendered by a QPPMH as
defined in 12VAC35-105-20.

13. The billing unit for intensive in-home service shall be
one hour. Although the pattern of service delivery may vary, intensive in-home
services is an intensive service provided to individuals for whom there is an
ISP in effect which demonstrates the need for a minimum of three hours a week
of intensive in-home service, and includes a plan for service provision of a
minimum of three hours of service delivery per individual/family per week in
the initial phase of treatment. It is expected that the pattern of service
provision may show more intensive services and more frequent contact with the
individual and family initially with a lessening or tapering off of intensity
toward the latter weeks of service. Service plans shall incorporate an
individualized discharge plan that describes transition from intensive in-home
to less intensive or nonhome based services.

14. The ISP, as defined in 12VAC30-50-226, shall be updated as
the individual's needs and progress changes and signed by either the parent or
legal guardian and the individual. Documentation shall be provided if the
individual, who is a minor child, is unable or unwilling to sign the ISP. If
there is a lapse in services that is greater than 31 consecutive calendar days
without any communications from family members/legal guardian or the individual
with the service provider, the provider shall discharge the individual.
If the individual continues to need services, then a new intake/admission shall
be documented and a new service authorization shall be required.

15. The provider shall ensure that the maximum
staff-to-caseload ratio fully meets the needs of the individual.

16. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the service
provider shall contact the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers who are using the same
electronic health record for the individual shall meet requirements for
delivery of the notification, monthly updates, and discharge summary upon entry
of the information in the electronic health records.

17. Emergency assistance shall be available 24 hours per day,
seven days a week.

19. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or guardian, shall
inform him of the individual's receipt of IIH services. The documentation shall
include who was contacted, when the contact occurred, and what information was
transmitted.

D. TherapeuticUtilization review of therapeutic
day treatment for children and adolescents.

1. The service definition for therapeutic day treatment (TDT)
for children and adolescents is contained in 12VAC30-50-130.

2. Therapeutic day treatment is appropriate for children and
adolescents who meet one of the following:

a. Children and adolescents who require year-round treatment
in order to sustain behavior or emotional gains.

b. Children and adolescents whose behavior and emotional
problems are so severe they cannot be handled in self-contained or resource
emotionally disturbed (ED) classrooms without:

(1) This programming during the school day; or

(2) This programming to supplement the school day or school
year.

c. Children and adolescents who would otherwise be placed on
homebound instruction because of severe emotional/behavior problems that
interfere with learning.

d. Children and adolescents who (i) have deficits in social
skills, peer relations or dealing with authority; (ii) are hyperactive; (iii)
have poor impulse control; (iv) are extremely depressed or marginally connected
with reality.

e. Children in preschool enrichment and early intervention
programs when the children's emotional/behavioral problems are so severe that
they cannot function in these programs without additional services.

3. The service-specific provider intake shall document the
individual's behavior and describe how the individual meets these specific
service criteria in subdivision 2 of this subsection.

4. Prior to admission to this service, a service-specific
provider intake shall be conducted by the LMHP as defined in 12VAC35-105-20.

5. An ISP shall be fully completed, signed, and dated by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or QMHP-E and by the
individual or the parent/guardian within 30 days of initiation of services and
shall meet all requirements of an ISP as defined in 12VAC30-50-226. Individual
progress notes shall be required for each contact with the individual and shall
meet all of the requirements as defined in 12VAC30-50-130.

6. Such services shall not duplicate those services provided
by the school.

7. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral or emotional illness which results in significant functional
impairments in major life activities. Individuals shall meet at least two of
the following criteria on a continuing or intermittent basis:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services, or judicial
system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

8. The enrolled provider of therapeutic day treatment for
child and adolescent services shall be licensed by DBHDS to provide day support
services. The provider shall also have a provider enrollment agreement in
effect with DMAS prior to the delivery of this service that indicates that the
provider offers therapeutic day treatment services for children and
adolescents.

10. The minimum staff-to-individual ratio as defined by DBHDS
licensing requirements shall ensure that adequate staff is available to meet
the needs of the individual identified on the ISP.

11. The program shall operate a minimum of two hours per day
and may offer flexible program hours (i.e., before or after school or during
the summer). One unit of service shall be defined as a minimum of two hours but
less than three hours in a given day. Two units of service shall be defined as
a minimum of three but less than five hours in a given day. Three units of
service shall be defined as five or more hours of service in a given day.

12. Time required for academic instruction when no treatment
activity is going on shall not be included in the billing unit.

13. Services shall be provided following a service-specific
provider intake that is conducted by an LMHP, LMHP-supervisee, LMHP-resident,
or LMHP-RP. An LMHP, LMHP-supervisee, or LMHP-resident shall make and document
the diagnosis. The service-specific provider intake shall include the elements
as defined in 12VAC30-50-130.

14. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider
shall collaborate with the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers using the same electronic
health record for the individual shall meet requirements for delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.

15. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the child's receipt of community mental health
rehabilitative services. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted. The
parent/legal guardian shall be required to give written consent that this
provider has permission to inform the primary care provider of the child's or
adolescent's receipt of community mental health rehabilitative services.

16. Providers shall comply with DMAS marketing requirements as
set out in 12VAC30-130-2000. Providers that DMAS determines have violated these
marketing requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.

17. If there is a lapse in services greater than 31
consecutive calendar days, the provider shall discharge the individual. If the
individual continues to need services, a new intake/admission documentation
shall be prepared and a new service authorization shall be required.

E. Community-basedUtilization review of
community-based services for children and adolescents under 21 years of age
(Level A).

1. The staff ratio must be at least 1 to 6 during the day and
at least 1 to 10 between 11 p.m. and 7 a.m. The program director supervising
the program/group home must be, at minimum, a QMHP-C or QMHP-E (as defined in
12VAC35-105-20). The program director must be employed full time.

2. In order for Medicaid reimbursement to be approved, at
least 50% of the provider's direct care staff at the group home must meet DBHDS
paraprofessional staff criteria, defined in 12VAC35-105-20.

3. Authorization is required for Medicaid reimbursement. All
community-based services for children and adolescents under 21 (Level A)
require authorization prior to reimbursement for these services. Reimbursement
shall not be made for this service when other less intensive services may
achieve stabilization.

4. Services must be provided in accordance with an individual
service plan (ISP), which must be fully completed within 30 days of
authorization for Medicaid reimbursement.

5. Prior to admission, a service-specific provider intake
shall be conducted according to DMAS specifications described in
12VAC30-50-130.

6. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

7. If an individual receiving community-based services for
children and adolescents under 21 (Level A) is also receiving case management
services, the provider shall collaborate with the case manager by notifying the
case manager of the provision of Level A services and shall send monthly
updates on the individual's progress. When the individual is discharged from
Level A services, a discharge summary shall be sent to the case manager within
30 days of the service discontinuation date. Service providersProviders
and case managers who are using the same electronic health record for the
individual shall meet requirements for the delivery of the notification,
monthly updates, and discharge summary upon entry of this documentation into
the electronic health record.

F. TherapeuticUtilization review of therapeutic
behavioral services for children and adolescents under 21 years of age (Level
B).

1. The staff ratio must be at least 1 to 4 during the day and
at least 1 to 8 between 11 p.m. and 7 a.m. The clinical director must be a
licensed mental health professional. The caseload of the clinical director must
not exceed 16 individuals including all sites for which the same clinical
director is responsible.

2. The program director must be full time and be a QMHP-C or
QMHP-E with a bachelor's degree and at least one year's clinical experience.

3. For Medicaid reimbursement to be approved, at least 50% of
the provider's direct care staff at the group home shall meet DBHDS
paraprofessional staff criteria, as defined in 12VAC35-105-20. The program/group
home must coordinate services with other providers.

4. All therapeutic behavioral services (Level B) shall be
authorized prior to reimbursement for these services. Services rendered without
such prior authorization shall not be covered.

5. Services must be provided in accordance with an ISP, which
shall be fully completed within 30 days of authorization for Medicaid
reimbursement.

6. Prior to admission, a service-specific provider intake
shall be performed using all elements specified by DMAS in 12VAC30-50-130.

7. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

8. If an individual receiving therapeutic behavioral services
for children and adolescents under 21 (Level B) is also receiving case
management services, the therapeutic behavioral services provider must
collaborate with the care coordinator/case manager by notifying him of the
provision of Level B services and the Level B services provider shall send
monthly updates on the individual's treatment status. When the individual is
discharged from Level B services, a discharge summary shall be sent to the care
coordinator/case manager within 30 days of the discontinuation date.

9. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the individual's receipt of these Level B
services. The documentation shall include who was contacted, when the contact
occurred, and what information was transmitted. If these individuals are
children or adolescents, then the parent/legal guardian shall be required to
give written consent that this provider has permission to inform the primary
care provider of the individual's receipt of community mental health
rehabilitative services.

G. Utilization review. Utilization reviews for
community-based services for children and adolescents under 21 years of age
(Level A) and therapeutic behavioral services for children and adolescents
under 21 years of age (Level B) shall include determinations whether providers
meet all DMAS requirements, including compliance with DMAS marketing
requirements. Providers that DMAS determines have violated the DMAS marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000(E).

H. Utilization review of behavioral therapy services for
children.

1. In order for Medicaid to cover behavioral therapy
services, the provider shall be enrolled with DMAS or its contractor as a
Medicaid provider. The provider enrollment agreement shall be in effect prior
to the delivery of services for Medicaid reimbursement.

2. Behavioral therapy services shall be covered for
individuals younger than 21 years of age when recommended by the individual's primary
care provider, licensed physician, licensed physician assistant, or licensed
nurse practitioner and determined by DMAS or its contractor to be medically
necessary to correct or ameliorate significant impairments in major life
activities that have resulted from either developmental, behavioral, or mental
disabilities.

3. Behavioral therapy services require service
authorization. Services shall be authorized only when eligibility and medical
necessity criteria are met.

4. Prior to treatment, an appropriate service-specific
provider intake shall be conducted, documented, signed, and dated by a licensed
behavior analyst (LBA), licensed assistant behavior analyst (LABA), or LMHP,
LMHP-R, LMHP-RP, or LMHP-S, acting within the scope of his practice, documenting
the individual's diagnosis (including a description of the behavior or
behaviors targeted for treatment with their frequency, duration, and intensity)
and describing how service needs can best be met through behavioral therapy.
The service-specific provider intake shall be conducted face-to-face in the
individual's residence with the individual and parent or guardian. A new
service-specific provider intake shall be conducted and documented every three
months, or more often if needed, to observe the individual and family
interaction, review clinical data, and revise the ISP as needed.

5. The ISP shall be developed upon admission to the service
and reviewed within 30 days of admission to the service to ensure that all
treatment goals are reflective of the individual's clinical needs and shall
describe each treatment goal, targeted behavior, one or more measurable
objectives for each targeted behavior, the behavioral modification strategy to
be used to manage each targeted behavior, the plan for parent or caregiver
training, care coordination, and the measurement and data collection methods to
be used for each targeted behavior in the ISP. The ISP shall be fully
completed, signed, and dated by an LBA, LABA, LMHP, LMHP-R, LMHP-RP, or LMHP-S
and the individual and individual's parent or guardian. The ISP shall be
reviewed every three months (at the same time the service-specific provider
intake is conducted and documented) and updated as the individual progresses
and his needs change, but at least annually, and shall be signed by either the
parent or legal guardian and the individual. Documentation shall be provided if
the individual, who is a minor child, is unable or unwilling to sign the ISP.

6. Reimbursement for the initial service-specific provider
intake and the initial ISP shall be limited to five hours without service
authorization. If additional time is needed to complete these documents,
service authorization shall be required.

7. Clinical supervision shall be required for Medicaid
reimbursement of behavioral therapy services that are rendered by an LABA,
LMHP-R, LMHP-RP, or LMHP-S or unlicensed staff consistent with the scope of
practice as described by the applicable Virginia Department of Health
Professions regulatory board. Clinical supervision shall occur at least weekly
and, as documented in the individual's medical record, shall include a review
of progress notes and data and dialogue with supervised staff about the
individual’s progress and the effectiveness of the ISP.

8. The following shall not be covered under this service:

a. Screening to identify physical, mental, or developmental
conditions that may require evaluation or treatment. Screening is covered as an
EPSDT service provided by the primary care provider and is not covered as a
behavioral therapy service under this section.

b. Services other than the initial service-specific
provider intake that are provided but are not based upon the individual's ISP
or linked to a service in the ISP. Time not actively involved in providing
services directed by the ISP shall not be reimbursed.

c. Services that are based upon an incomplete, missing, or
outdated service-specific provider intake or ISP.

d. Sessions that are conducted for family support,
education, recreational, or custodial purposes, including respite or child
care.

e. Services that are provided by a provider but are
rendered primarily by a relative or guardian who is legally responsible for the
individual's care.

f. Services that are provided in a clinic or provider's
office without documented justification for the location in the ISP.

g. Services that are provided in the absence of the
individual and a parent or other authorized caregiver identified in the ISP
with the exception of treatment review processes described in 12VAC30-60-61 H
11 e, care coordination, and clinical supervision.

h. Services provided by a local education agency.

i. Provider travel time.

9. Behavioral therapy services shall not be reimbursed
concurrently with community mental health services described in 12VAC30-50-130
B 5 or 12VAC30-50-226, or behavioral, psychological, or psychiatric therapeutic
consultation described in 12VAC30-120-756, 12VAC30-120-1000, or
12VAC30-135-320.

10. If the individual is receiving targeted case management
services under the Medicaid state plan (defined in 12VAC30-50-410 through
12VAC30-50-491, the provider shall notify the case manager of the provision of
behavioral therapy services unless the parent or guardian requests that the
information not be released. In addition, the provider shall send monthly
updates to the case manager on the individual's status pursuant to a valid
release of information. A discharge summary shall be sent to the case manager
within 30 days of the service discontinuation date. A refusal of the parent or
guardian to release information shall be documented in the medical record for
the date the request was discussed.

11. Other standards to ensure quality of services:

a. Services shall be delivered only by an LBA, LABA, LMHP,
LMHP-R, LMHP-RP, LMHP-S, or clinically supervised unlicensed staff consistent
with the scope of practice as described by the applicable Virginia Department
of Health Professions regulatory board.

b. Individual-specific services shall be directed toward
the treatment of the eligible individual and delivered in the family's
residence unless an alternative location is justified and documented in the
ISP.

c. Individual-specific progress notes shall be created
contemporaneously with the service activities and shall document the name and
Medicaid number of each individual; the provider's name, signature, and date;
and time of service. Documentation shall include activities provided, length of
services provided, the individual's reaction to that day's activity, and
documentation of the individual's and the parent or caregiver's progress toward
achieving each behavioral objective through analysis and reporting of
quantifiable behavioral data. Documentation shall be prepared to clearly
demonstrate efficacy using baseline and service-related data that shows
clinical progress and generalization for the child and family members toward
the therapy goals as defined in the service plan.

d. Documentation of all billed services shall include the
amount of time or billable units spent to deliver the service and shall be
signed and dated on the date of the service by the practitioner rendering the
service.

e. Billable time is permitted for the LBA, LABA, LMHP,
LMHP-R, LMHP-RP, or LMHP-S to better define behaviors and develop documentation
strategies to measure treatment performance and the efficacy of the ISP
objectives, provided that these activities are documented in a progress note as
described in subdivision 11 c of this subsection.

12. Failure to comply with any of the requirements in
12VAC30-50-130 or in this section shall result in retraction.

A. Payment for behavioral therapy services for individuals
younger than 21 years of age shall be the lower of the state agency fee
schedule or actual charge (charge to the general public). All private and
governmental fee-for-service providers shall be reimbursed according to the
same methodology. The agency's rates were set as of October 1, 2011, and are
effective for services on or after that date until rates are revised. Rates are
published on the agency's website at www.dmas.virginia.gov.

B. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

12VAC30-120-380. MCO responsibilities.

A. The MCO shall provide, at a minimum, all medically
necessary covered services provided under the State Plan for Medical Assistance
and further defined by written DMAS regulations, policies and instructions,
except as otherwise modified or excluded in this part.

1. Nonemergency services provided by hospital emergency
departments shall be covered by MCOs in accordance with rates negotiated
between the MCOs and the hospital emergency departments.

2. Services that shall be provided outside the MCO network
shall include, but are not limited to, those services identified and
defined by the contract between DMAS and the MCO. Services reimbursed by DMAS
include (i) dental and orthodontic services for children up to age 21 years;
(ii) for all others, dental services (as described in 12VAC30-50-190), (iii)
school health services, (iv) community mental health services
(12VAC30-50-130 and 12VAC30-50-226); (v) early intervention services
provided pursuant to Part C of the Individuals with Disabilities Education Act
(IDEA) of 2004 (as defined in 12VAC30-50-131 and 12VAC30-50-415), and);
(vi) long-term care services provided under the § 1915(c) home-based and
community-based waivers including related transportation to such authorized
waiver services; and (vii) behavioral therapy services as defined in
12VAC30-50-130.

3. The MCOs shall pay for emergency services and family
planning services and supplies whether such services are provided inside or
outside the MCO network.

B. EPSDT services shall be covered by the MCO and defined by
the contract between DMAS and the MCO. The MCO shall have the authority to
determine the provider of service for EPSDT screenings.

C. The MCOs shall report data to DMAS under the contract
requirements, which may include data reports, report cards for members, and ad
hoc quality studies performed by the MCO or third parties.

D. Documentation requirements.

1. The MCO shall maintain records as required by federal and
state law and regulation and by DMAS policy. The MCO shall furnish such
required information to DMAS, the Attorney General of Virginia or his
authorized representatives, or the State Medicaid Fraud Control Unit on request
and in the form requested.

2. Each MCO shall have written policies regarding member
rights and shall comply with any applicable federal and state laws that pertain
to member rights and shall ensure that its staff and affiliated providers take
those rights into account when furnishing services to members in accordance
with 42 CFR 438.100.

3. Providers shall be required to refund payments if they
fail to maintain adequate documentation to support billed activities.

E. The MCO shall ensure that the health care provided to its
members meets all applicable federal and state mandates, community standards
for quality, and standards developed pursuant to the DMAS managed care quality
program.

F. The MCOs shall promptly provide or arrange for the
provision of all required services as specified in the contract between the
Commonwealth and the MCO. Medical evaluations shall be available within 48
hours for urgent care and within 30 calendar days for routine care. On-call
clinicians shall be available 24 hours per day, seven days per week.

G. The MCOs shall meet standards specified by DMAS for
sufficiency of provider networks as specified in the contract between the
Commonwealth and the MCO.

H. Each MCO and its subcontractors shall have in place, and
follow, written policies and procedures for processing requests for initial and
continuing authorizations of service. Each MCO and its subcontractors shall
ensure that any decision to deny a service authorization request or to
authorize a service in an amount, duration, or scope that is less than
requested, be made by a health care professional who has appropriate clinical
expertise in treating the member's condition or disease. Each MCO and its
subcontractors shall have in effect mechanisms to ensure consistent application
of review criteria for authorization decisions and shall consult with the
requesting provider when appropriate.

I. In accordance with 42 CFR 447.50 through 42 CFR
447.60, MCOs shall not impose any cost sharing obligations on members except as
set forth in 12VAC30-20-150 and 12VAC30-20-160.

J. An MCO may not prohibit, or otherwise restrict, a health
care professional acting within the lawful scope of practice, from advising or
advocating on behalf of a member who is his patient in accordance with 42 CFR
438.102.

K. An MCO that would otherwise be required to reimburse for
or provide coverage of a counseling or referral service is not required to do
so if the MCO objects to the service on moral or religious grounds and
furnishes information about the service it does not cover in accordance with 42
CFR 438.102.

Basis: Section 32.1-325 of the Code of Virginia grants
to the Board of Medical Assistance Services the authority to administer and
amend the Plan for Medical Assistance and to make, adopt, promulgate, and
enforce regulations to implement the state plan, and § 32.1-324 of the Code of
Virginia authorizes the Director of the Department of Medical Assistance
Services (DMAS) to administer and amend the Plan for Medical Assistance
according to the board's requirements. The Medicaid authority as established by
§ 1902(a) of the Social Security Act (42 USC § 1396a) provides
governing authority for payments for services.

Section 1905 of the Social Security Act requires state Medicaid
programs to provide early and periodic screening, diagnosis, and treatment
(EPSDT) services for individuals who are eligible under the plan and are
younger than the age of 21 years, to include "Such other necessary health
care, diagnostic services, treatment, and other measures described in § 1905(a)
to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services, whether or not such services
are covered under the State plan." If an individual is determined through
an EPSDT screening to need a medical service that is not otherwise covered in
Virginia's State Plan, then this provision in federal law requires the
Commonwealth to cover that service. Behavioral therapy services are an EPSDT
service.

Purpose: The proposed regulatory action is intended to
promote an improved quality of Medicaid-covered behavioral therapy services
provided to children and adolescents. The proposed regulation will
differentiate Medicaid's coverage of behavioral therapy and applied behavior
analysis services from coverage of community mental health and other
developmental services. This regulatory action is essential to protect the
health, safety, and welfare of these affected individuals and to ensure the
quality of services rendered to children and adolescents who demonstrate the
medical need for EPSDT behavioral therapy services. Regulations are needed to
establish clear criteria for Medicaid payment of these services. Regulatory
action is needed to ensure that Medicaid individuals and their families and
service providers are well informed about service specifications prior to
receiving or providing these services. These services will allow children
receiving services to improve interactions with their schools, families,
communities, future employers, and jobs and thus benefit a broad range of
citizens. These regulations are not expected to negatively affect the health,
safety, or welfare of citizens of the Commonwealth.

Substance: Currently, Medicaid payment for behavioral
therapy services is being authorized on an individual case basis under the
authority provided by the basic EPSDT definition found in 12VAC30-50-130 B. The
absence of consistently applied definitions, service requirements, required
provider qualifications, and quality assurance standards might result in
arbitrary decisions that cannot be sustained in an appeal. With increasing
numbers of children being diagnosed with autism and autism spectrum disorders
in need of such services, the individual-case-basis method of covering these
services is no longer satisfactory or appropriate.

DMAS proposes to initiate uniform coverage of behavioral
therapy services for individuals under the age of 21 years who meet the medical
necessity criteria. Trained professionals rendering early intensive treatment,
including applied behavior analysis techniques, has been shown to be effective
in ameliorating impairments in major life functions arising from autism
spectrum disorders and other diagnosed conditions. Coverage of EPSDT behavioral
therapy services will not cause more individuals to be eligible for this
service but will ensure appropriate treatment of eligible children who are
already in the care delivery system as well as those initiating behavioral
therapy services.

Prior to treatment, an appropriate health care practitioner
conducts an intake documenting the child's medical and psychiatric diagnosis
and describing how service needs can best be met through behavioral therapy
interventions. The assessment includes a description of the behavior or
behaviors targeted for treatment, including data on the frequency, duration, and
intensity of the behavior or behaviors. An individualized service plan (ISP) is
developed based on the assessment. The ISP describes each targeted behavior,
the behavioral modification strategy to be used to manage each targeted
behavior, and the measurement and data collection methods to be used for each
targeted behavior in the plan.

Behavioral analysis treatment strategies are systematic
interventions that are primarily provided in the family home. Family training
and counseling related to the implementation of the behavioral therapy shall be
included as part of the behavioral therapy service. Behavioral therapy may be
intermittently provided in community settings when approved settings are deemed
by DMAS or its contractor as medically necessary treatment. These services are
designed to enhance communication skills and decrease maladaptive patterns of
behavior that, if left untreated, could lead to more complex problems and the
need for a greater or a more restrictive level of care, such as institutionalization.
Successful implementation of behavioral therapy services requires the
participation of a parent or guardian.

The service goal is to ensure that the member's family is
trained to successfully manage clinically designed behavioral modification
strategies in the home setting. The family involvement in therapy is meant to
increase the child's adaptive functioning by training the family in effective
methods of behavioral modification strategies. Family members do not have to be
present during all hours of therapy. Family members must be present and
participate with their treatment plan objectives in an effective manner as
documented by the clinical supervisor.

EPSDT behavioral therapy services are intended to improve the
functional behaviors of the member by integrating multidisciplinary clinical
and medical services with the behavioral therapy protocol to increase the
member's adaptive functioning and communicative abilities. Treatment results
must be documented to indicate a generalization of behaviors across different
settings to maintain the targeted functioning outside of the treatment setting
in the patient's residence and the larger community within which the individual
resides.

Behavioral therapy services are currently excluded from
Medicaid managed care contracts and reimbursed by the behavioral health
services administrator (currently, Magellan) on a fee-for-service basis.
Technical corrections are made to the catchlines of several existing services
in 12VAC30-60-61 to create consistency in regulatory text and improve
readability.

Issues: The proposed regulation is advantageous to
individuals and their families by ensuring that Medicaid funded behavioral
therapy services are provided by licensed practitioners with the education,
experience, and clinical training necessary to effectively correct or
ameliorate problematic behaviors through the use of evidence based behavior
modification principles. Regulatory action will ensure that individuals, their
families, and service providers are well informed about Medicaid service
requirements prior to receiving or providing these services, thereby avoiding
DMAS recovery of provider payments made for inappropriate or inadequate
services. This regulatory action will also support the efforts of DMAS and its
contractors to provide effective care coordination and administrative oversight
of service delivery by clarifying provider requirements and service delivery
requirements in the Virginia Administrative Code. The primary advantage to the
Commonwealth, in the setting of these criteria and standards, will be the
statewide uniform application of policies that should result in fewer costly
provider appeals and reduced risks for fraud, waste, and abuse. There are no
disadvantages to the Commonwealth for this action.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The proposed
regulation establishes in the Virginia Administrative Code uniform and specific
standards for diagnosis and provision of behavioral therapy services under
Medicaid for young people from birth through the age of 21.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. The proposed regulation establishes
in the Virginia Administrative Code Medicaid coverage for behavioral therapy
services for young people from birth through the age of 21 under the authority
of the Early and Periodic Screening, Diagnosis and Treatment program. To be
covered for this service, children and adolescents must have autism or autism
spectrum disorders, or other similar developmental delays as demonstrated by
their lack of communication skills or lack of interaction with their
environments.

Prior to 2012 these services were already covered by Medicaid,
but there were no uniform standards. The coverage decisions were made on a
case-by-case basis. In 2012, the Department of Medical Assistance Services
(DMAS) adopted a service manual setting out uniform rules for coverage and
provision of behavioral therapy services (e.g., rules for provider enrollment,
eligibility criteria, limitations, service authorization requirements, etc.).
In December 2013, DMAS contracted Magellan Health to administer the provision
of behavioral therapy services. Selection of a behavioral services
administrator to run the program marked the beginning of a significant increase
in provision of these services. In fiscal year 2013, 524 individuals received
these services at a cost of approximately $12.2 million. In calendar year 2014,
$28.2 million was spent on services provided to 1,831 individuals. In calendar
year 2015, the expenditures and recipients increased to $41.6 million and
2,313, respectively. In calendar year 2016, expenditures stood at $60.6 million
and the number of recipients was 2,996.

While the provision of behavioral therapy services has grown
significantly in the recent past, the impact of the proposed regulation on
utilization is expected to be neutral. These services have been provided
according to the uniform standards set out in the service manual since 2012.
Consistent with the service manual, this action specifies in the regulation the
behavioral service requirements, medical necessity criteria, provider clinical
assessment and intake procedures, service planning and progress measurement
requirements, care coordination, clinical supervision, and other standards.

The main effect of the proposed changes is establishing clear
criteria for Medicaid payment of these services in the Virginia Administrative
Code and consequently providing legal basis for the programs administration.
Having clear criteria in regulations is also expected to help protect the
health, safety, and welfare of the affected children by improving the
uniformity of service quality across providers.

Businesses and Entities Affected. As of August 2016, 348
behavioral therapy providers were credentialed with Magellan (only 89 of which
actively provided services in 2016) and there were 488 licensed behavioral
analysts and 103 licensed assistant behavioral analysts in the Commonwealth. In
2016, 2,996 individuals received these services.

Projected Impact on Employment. No significant impact on
employment is expected.

Effects on the Use and Value of Private Property. No
significant impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate
development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The Department of Medical Assistance
Services estimates that 90% of the current providers are small businesses. The
proposed amendments are not anticipated to create significant costs or other
effects on small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
amendments are not anticipated to have an adverse impact on small businesses.

Adverse Impacts:

Businesses. DMAS estimates that 10% of the current providers
are non-small businesses. The proposed amendments are not anticipated to create
significant costs or other effects on non-small businesses.

Localities. The proposed amendments will not adversely affect
localities.

Other Entities. The proposed amendments will not adversely
affect other entities.

Agency's Response to Economic Impact Analysis: The
agency has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and raises no issues with this analysis.

Summary:

The proposed amendments establish Medicaid coverage for
behavioral therapy services for children under the authority of the Early and
Periodic Screening, Diagnosis and Treatment (EPSDT) program. EPSDT is a
mandatory Medicaid-covered service that offers preventive, diagnostic, and treatment
health care services to young people from birth through the age of 21 years. To
be covered for this service, a child must have a psychiatric diagnosis relevant
to the need for behavioral therapy services, including autism, autism spectrum
disorders, or other similar developmental delays and must meet the medical
necessity criteria. The proposed regulations define the behavioral therapy
service requirements, medical necessity criteria, provider clinical assessment
and intake procedures, service planning and progress measurement requirements,
care coordination, clinical supervision, and other standards to assure quality.
The behavioral therapy service will be reimbursed by DMAS outside of the
Medallion 3 managed care contracts.

12VAC30-50-130. Nursing facility services, EPSDT, including
school health services and family planning.

A. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.

Service must be ordered or prescribed and directed or
performed within the scope of a license of the practitioner of the healing
arts.

B. Early and periodic screening and diagnosis of individuals
under 21 years of age, and treatment of conditions found.

1. Payment of medical assistance services shall be made on
behalf of individuals under 21 years of age, who are Medicaid eligible, for
medically necessary stays in acute care facilities, and the accompanying
attendant physician care, in excess of 21 days per admission when such services
are rendered for the purpose of diagnosis and treatment of health conditions
identified through a physical examination.

2. Routine physicals and immunizations (except as provided
through EPSDT) are not covered except that well-child examinations in a private
physician's office are covered for foster children of the local social services
departments on specific referral from those departments.

3. Orthoptics services shall only be reimbursed if medically
necessary to correct a visual defect identified by an EPSDT examination or
evaluation. The department shall place appropriate utilization controls upon
this service.

4. Consistent with the Omnibus Budget Reconciliation Act of
1989 § 6403, early and periodic screening, diagnostic, and treatment services
means the following services: screening services, vision services, dental
services, hearing services, and such other necessary health care, diagnostic
services, treatment, and other measures described in Social Security Act §
1905(a) to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services and which are medically
necessary, whether or not such services are covered under the State Plan and
notwithstanding the limitations, applicable to recipients ages 21 and over,
provided for by § 1905(a) of the Social Security Act.

5. Community mental health services. These services in order
to be covered (i) shall meet medical necessity criteria based upon diagnoses
made by LMHPs who are practicing within the scope of their licenses and (ii)
are reflected in provider records and on providers' claims for services by
recognized diagnosis codes that support and are consistent with the requested
professional services.

a. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context clearly
indicates otherwise:

"Adolescent or child" means the individual receiving
the services described in this section. For the purpose of the use of these
terms, adolescent means an individual 12-20 years of age; a child means an
individual from birth up to 12 years of age.

"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS.

"Care coordination" means collaboration and sharing
of information among health care providers, who are involved with an
individual's health care, to improve the care.

"Certified prescreener" means an employee of the
local community services board or behavioral health authority, or its designee,
who is skilled in the assessment and treatment of mental illness and has
completed a certification program approved by the Department of Behavioral
Health and Developmental Services.

"Clinical experience" means providing direct
behavioral health services on a full-time basis or equivalent hours of
part-time work to children and adolescents who have diagnoses of mental illness
and includes supervised internships, supervised practicums, and supervised
field experience for the purpose of Medicaid reimbursement of (i) intensive
in-home services, (ii) day treatment for children and adolescents, (iii)
community-based residential services for children and adolescents who are
younger than 21 years of age (Level A), or (iv) therapeutic behavioral services
(Level B). Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be as
established by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"DBHDS" means the Department of Behavioral Health
and Developmental Services.

"DMAS" means the Department of Medical Assistance
Services and its contractor or contractors.

"EPSDT" means early and periodic screening,
diagnosis, and treatment.

"Human services field" means the same as the term is
defined by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"Individual service plan" or "ISP" means
the same as the term is defined in 12VAC30-50-226.

"LMHP-resident" or "LMHP-R" means the same
as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of Counseling.
For purposes of Medicaid reimbursement to their supervisors for services
provided by such residents, they shall use the title "Resident" in
connection with the applicable profession after their signatures to indicate
such status.

"LMHP-resident in psychology" or "LMHP-RP"
means the same as an individual in a residency, as that term is defined in
18VAC125-20-10, program for clinical psychologists. An LMHP-resident in
psychology shall be in continuous compliance with the regulatory requirements
for supervised experience as found in 18VAC125-20-65 and shall not perform the
functions of the LMHP-RP or be considered a "resident" until the
supervision for specific clinical duties at a specific site has been
preapproved in writing by the Virginia Board of Psychology. For purposes of
Medicaid reimbursement by supervisors for services provided by such residents,
they shall use the title "Resident in Psychology" after their
signatures to indicate such status.

"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" as defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be
considered a "supervisee" until the supervision for specific clinical
duties at a specific site is preapproved in writing by the Virginia Board of
Social Work. For purposes of Medicaid reimbursement to their supervisors for
services provided by supervisees, these persons shall use the title
"Supervisee in Social Work" after their signatures to indicate such
status.

"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized and member-specific progress notes are part of the
minimum documentation requirements and shall convey the individual's status,
staff interventions, and, as appropriate, the individual's progress, or lack of
progress, toward goals and objectives in the ISP. The progress notes shall also
include, at a minimum, the name of the service rendered, the date of the
service rendered, the signature and credentials of the person who rendered the
service, the setting in which the service was rendered, and the amount of time
or units/hours required to deliver the service. The content of each progress
note shall corroborate the time/units billed. Progress notes shall be
documented for each service that is billed.

"Psychoeducation" means (i) a specific form of
education aimed at helping individuals who have mental illness and their family
members or caregivers to access clear and concise information about mental
illness and (ii) a way of accessing and learning strategies to deal with mental
illness and its effects in order to design effective treatment plans and strategies.

"Psychoeducational activities" means systematic
interventions based on supportive and cognitive behavior therapy that
emphasizes an individual's and his family's needs and focuses on increasing the
individual's and family's knowledge about mental disorders, adjusting to mental
illness, communicating and facilitating problem solving and increasing coping
skills.

"Qualified mental health professional-child" or
"QMHP-C" means the same as the term is defined in 12VAC35-105-20.

"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-590.

"Qualified paraprofessional in mental health" or
"QPPMH" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-1370.

"Service-specific provider intake" means the
face-to-face interaction in which the provider obtains information from the
child or adolescent, and parent or other family member or members, as
appropriate, about the child's or adolescent's mental health status. It
includes documented history of the severity, intensity, and duration of mental
health care problems and issues and shall contain all of the following
elements: (i) the presenting issue/reason for referral, (ii) mental health
history/hospitalizations, (iii) previous interventions by providers and
timeframes and response to treatment, (iv) medical profile, (v) developmental
history including history of abuse, if appropriate, (vi) educational/vocational
status, (vii) current living situation and family history and relationships,
(viii) legal status, (ix) drug and alcohol profile, (x) resources and
strengths, (xi) mental status exam and profile, (xii) diagnosis, (xiii)
professional summary and clinical formulation, (xiv) recommended care and
treatment goals, and (xv) the dated signature of the LMHP, LMHP-supervisee,
LMHP-resident, or LMHP-RP.

"Services provided under arrangement" means the same
as defined in 12VAC30-130-850.

b. Intensive in-home services (IIH) to children and
adolescents under age 21 shall be time-limited interventions provided in the
individual's residence and when clinically necessary in community settings. All
interventions and the settings of the intervention shall be defined in the
Individual Service Plan. All IIH services shall be designed to specifically
improve family dynamics, provide modeling, and the clinically necessary
interventions that increase functional and therapeutic interpersonal relations
between family members in the home. IIH services are designed to promote
psychoeducational benefits in the home setting of an individual who is at risk
of being moved into an out-of-home placement or who is being transitioned to
home from an out-of-home placement due to a documented medical need of the
individual. These services provide crisis treatment; individual and family
counseling; communication skills (e.g., counseling to assist the individual and
his parents or guardians, as appropriate, to understand and practice
appropriate problem solving, anger management, and interpersonal interaction,
etc.); care coordination with other required services; and 24-hour emergency
response.

(1) These services shall be limited annually to 26 weeks.
Service authorization shall be required for Medicaid reimbursement prior to the
onset of services. Services rendered before the date of authorization shall not
be reimbursed.

(2) Service authorization shall be required for services to
continue beyond the initial 26 weeks.

(3) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(4) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

c. Therapeutic day treatment (TDT) shall be provided two or
more hours per day in order to provide therapeutic interventions. Day treatment
programs, limited annually to 780 units, provide evaluation; medication
education and management; opportunities to learn and use daily living skills
and to enhance social and interpersonal skills (e.g., problem solving, anger
management, community responsibility, increased impulse control, and
appropriate peer relations, etc.); and individual, group and family counseling.

(1) Service authorization shall be required for Medicaid
reimbursement.

(2) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(3) These services may be rendered only by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

d. Community-based services for children and adolescents under
21 years of age (Level A) pursuant to 42 CFR 440.031(d).

(1) Such services shall be a combination of therapeutic
services rendered in a residential setting. The residential services will
provide structure for daily activities, psychoeducation, therapeutic
supervision, care coordination, and psychiatric treatment to ensure the
attainment of therapeutic mental health goals as identified in the individual
service plan (plan of care). Individuals qualifying for this service must
demonstrate medical necessity for the service arising from a condition due to
mental, behavioral or emotional illness that results in significant functional
impairments in major life activities in the home, school, at work, or in the
community. The service must reasonably be expected to improve the child's
condition or prevent regression so that the services will no longer be needed.
The application of a national standardized set of medical necessity criteria in
use in the industry, such as McKesson InterQual® Criteria or an
equivalent standard authorized in advance by DMAS, shall be required for this
service.

(2) In addition to the residential services, the child must
receive, at least weekly, individual psychotherapy that is provided by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.

(3) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(4) Authorization shall be required for Medicaid
reimbursement. Services that were rendered before the date of service
authorization shall not be reimbursed.

(5) Room and board costs shall not be reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(6) These residential providers must be licensed by the
Department of Social Services, Department of Juvenile Justice, or Department of
Behavioral Health and Developmental Services under the Standards for Licensed
Children's Residential Facilities (22VAC40-151), Regulation Governing Juvenile
Group Homes and Halfway Houses (6VAC35-41), or Regulations for Children's
Residential Facilities (12VAC35-46).

(7) Daily progress notes shall document a minimum of seven
psychoeducational activities per week. Psychoeducational programming must
include, but is not limited to, development or maintenance of daily living
skills, anger management, social skills, family living skills, communication
skills, stress management, and any care coordination activities.

(8) The facility/group home must coordinate services with
other providers. Such care coordination shall be documented in the individual's
medical record. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.

(9) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
intakes and ISPs are set out in 12VAC30-60-61.

(10) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(1) Such services must be therapeutic services rendered in a
residential setting that provide structure for daily activities,
psychoeducation, therapeutic supervision, care coordination, and psychiatric
treatment to ensure the attainment of therapeutic mental health goals as
identified in the individual service plan (plan of care). Individuals
qualifying for this service must demonstrate medical necessity for the service
arising from a condition due to mental, behavioral or emotional illness that
results in significant functional impairments in major life activities in the
home, school, at work, or in the community. The service must reasonably be
expected to improve the child's condition or prevent regression so that the
services will no longer be needed. The application of a national standardized
set of medical necessity criteria in use in the industry, such as McKesson
InterQual® Criteria, or an equivalent standard authorized in advance
by DMAS shall be required for this service.

(2) Authorization is required for Medicaid reimbursement.
Services that are rendered before the date of service authorization shall not
be reimbursed.

(3) Room and board costs shall not be reimbursed. Facilities
that only provide independent living services are not reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(4) These residential providers must be licensed by the
Department of Behavioral Health and Developmental Services (DBHDS) under the
Regulations for Children's Residential Facilities (12VAC35-46).

(5) Daily progress notes shall document that a minimum of
seven psychoeducational activities per week occurs. Psychoeducational
programming must include, but is not limited to, development or maintenance of
daily living skills, anger management, social skills, family living skills,
communication skills, and stress management. This service may be provided in a
program setting or a community-based group home.

(6) The individual must receive, at least weekly, individual
psychotherapy and, at least weekly, group psychotherapy that is provided as
part of the program.

(7) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(8) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services that are based upon incomplete, missing, or outdated
service-specific provider intakes or ISPs shall be denied reimbursement.
Requirements for intakes and ISPs are set out in 12VAC30-60-61.

(9) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(10) The facility/group home shall coordinate necessary
services with other providers. Documentation of this care coordination shall be
maintained by the facility/group home in the individual's record. The
documentation shall include who was contacted, when the contact occurred, and
what information was transmitted.

6. Inpatient psychiatric services shall be covered for
individuals younger than age 21 for medically necessary stays in inpatient
psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2) for
the purpose of diagnosis and treatment of mental health and behavioral
disorders identified under EPSDT when such services are rendered by (i) a
psychiatric hospital or an inpatient psychiatric program in a hospital
accredited by the Joint Commission on Accreditation of Healthcare Organizations
or (ii) a psychiatric facility that is accredited by the Joint Commission on
Accreditation of Healthcare Organizations or the Commission on Accreditation of
Rehabilitation Facilities. Inpatient psychiatric hospital admissions at general
acute care hospitals and freestanding psychiatric hospitals shall also be
subject to the requirements of 12VAC30-50-100, 12VAC30-50-105, and
12VAC30-60-25. Inpatient psychiatric admissions to residential treatment
facilities shall also be subject to the requirements of Part XIV (12VAC30-130-850
et seq.) of 12VAC30-130.

a. The inpatient psychiatric services benefit for individuals
younger than 21 years of age shall include services defined at 42 CFR 440.160
that are provided under the direction of a physician pursuant to a certification
of medical necessity and plan of care developed by an interdisciplinary team of
professionals and shall involve active treatment designed to achieve the
child's discharge from inpatient status at the earliest possible time. The
inpatient psychiatric services benefit shall include services provided under
arrangement furnished by Medicaid enrolled providers other than the inpatient
psychiatric facility, as long as the inpatient psychiatric facility (i)
arranges for and oversees the provision of all services, (ii) maintains all
medical records of care furnished to the individual, and (iii) ensures that the
services are furnished under the direction of a physician. Services provided
under arrangement shall be documented by a written referral from the inpatient
psychiatric facility. For purposes of pharmacy services, a prescription ordered
by an employee or contractor of the facility who is licensed to prescribe drugs
shall be considered the referral.

b. Eligible services provided under arrangement with the inpatient
psychiatric facility shall vary by provider type as described in this
subsection. For purposes of this section, emergency services means the same as
is set out in 12VAC30-50-310 B.

c. Inpatient psychiatric services are reimbursable only when
the treatment program is fully in compliance with (i) 42 CFR Part 441 Subpart
D, specifically 42 CFR 441.151(a) and (b) and 441.152 through 441.156, and
(ii) the conditions of participation in 42 CFR Part 483 Subpart G. Each
admission must be preauthorized and the treatment must meet DMAS requirements for
clinical necessity.

d. Service limits may be exceeded based on medical necessity
for individuals eligible for EPSDT.

7. Hearing aids shall be reimbursed for individuals younger
than 21 years of age according to medical necessity when provided by practitioners
licensed to engage in the practice of fitting or dealing in hearing aids under
the Code of Virginia.

8. Behavioral therapy services shall be covered for
individuals under the age of 21 years.

a. Definitions. The following words and terms when used in
this subsection shall have the following meanings unless the context clearly
indicates otherwise:

"Behavioral therapy" means systematic
interventions provided by licensed practitioners acting within the scope of
practice defined under a Virginia Health Professions Regulatory Board and
covered as remedial care under 42 CFR 440.130(d) within the home to
individuals under 21 years of age. Behavioral therapy includes applied
behavioral analysis and is primarily provided in the family home. Family
counseling and training related to the implementation of the behavioral therapy
shall be included as part of the behavioral therapy service. Behavioral therapy
services shall be subject to clinical reviews and determined as medically
necessary. Behavioral therapy may be intermittently provided in community
settings when approved settings are deemed by DMAS or its contractor as
medically necessary treatment.

"Individual" means the child or adolescent under
the age of 21 who is receiving behavioral therapy services.

"Primary care provider" means a licensed medical
practitioner who provides preventive and primary health care and is responsible
for providing routine EPSDT screening and referral and coordination of other
medical services needed by the individual.

b. Behavioral therapy services shall be designed to enhance
communication skills and decrease maladaptive patterns of behavior, which if
left untreated, could lead to more complex problems and the need for a greater
or a more intensive level of care. The service goal shall be to ensure the
individual's family or caregiver is trained to effectively manage the
individual's behavior in the home using modification strategies. The services
shall be provided in accordance with the individual service plan and clinical assessment
summary.

c. Behavioral therapy services shall be covered when
recommended by the individual's primary care provider or other licensed
physician, licensed physician assistant, or licensed nurse practitioner and
determined by DMAS or its contractor to be medically necessary to correct or
ameliorate significant impairments in major life activities that have resulted
from either developmental, behavioral, or mental disabilities. Criteria for
medical necessity are set out in 12VAC30-60-61 H. Service-specific provider
intakes shall be required at the onset of these services in order to receive
authorization for reimbursement. Individual service plans (ISPs) shall be
required throughout the entire duration of services. The services shall be
provided in accordance with the individual service plan and clinical assessment
summary. These services shall be provided in settings that are natural or
normal for a child or adolescent without a disability, such as his home, unless
there is justification in the ISP, which has been authorized for reimbursement,
to include service settings that promote a generalization of behaviors across
different settings to maintain the targeted functioning outside of the
treatment setting in the patient's residence and the larger community within
which the individual resides. Covered behavioral therapy services shall
include:

2. School divisions may provide routine well-child screening
services under the State Plan. Diagnostic and treatment services that are
otherwise covered under early and periodic screening, diagnosis and treatment
services, shall not be covered for school divisions. School divisions to
receive reimbursement for the screenings shall be enrolled with DMAS as clinic
providers.

a. Children enrolled in managed care organizations shall
receive screenings from those organizations. School divisions shall not receive
reimbursement for screenings from DMAS for these children.

b. School-based services are listed in a recipient's
individualized education program (IEP) and covered under one or more of the
service categories described in § 1905(a) of the Social Security Act. These
services are necessary to correct or ameliorate defects of physical or mental
illnesses or conditions.

3. Service providersProviders shall be licensed
under the applicable state practice act or comparable licensing criteria by the
Virginia Department of Education, and shall meet applicable qualifications
under 42 CFR Part 440. Identification of defects, illnesses or conditions and
services necessary to correct or ameliorate them shall be performed by
practitioners qualified to make those determinations within their licensed
scope of practice, either as a member of the IEP team or by a qualified
practitioner outside the IEP team.

a. Service providersProviders shall be employed
by the school division or under contract to the school division.

b. Supervision of services by providers recognized in
subdivision 4 of this subsection shall occur as allowed under federal
regulations and consistent with Virginia law, regulations, and DMAS provider
manuals.

c. The services described in subdivision 4 of this subsection
shall be delivered by school providers, but may also be available in the
community from other providers.

d. Services in this subsection are subject to utilization
control as provided under 42 CFR Parts 455 and 456.

e. The IEP shall determine whether or not the services
described in subdivision 4 of this subsection are medically necessary and that
the treatment prescribed is in accordance with standards of medical practice.
Medical necessity is defined as services ordered by IEP providers. The IEP
providers are qualified Medicaid providers to make the medical necessity
determination in accordance with their scope of practice. The services must be
described as to the amount, duration and scope.

4. Covered services include:

a. Physical therapy, occupational therapy and services for
individuals with speech, hearing, and language disorders, performed by, or
under the direction of, providers who meet the qualifications set forth at 42
CFR 440.110. This coverage includes audiology services;

b. Skilled nursing services are covered under 42 CFR
440.60. These services are to be rendered in accordance to the licensing
standards and criteria of the Virginia Board of Nursing. Nursing services are
to be provided by licensed registered nurses or licensed practical nurses but
may be delegated by licensed registered nurses in accordance with the
regulations of the Virginia Board of Nursing, especially the section on
delegation of nursing tasks and procedures. The licensed practical nurse is
under the supervision of a registered nurse.

(1) The coverage of skilled nursing services shall be of a
level of complexity and sophistication (based on assessment, planning,
implementation and evaluation) that is consistent with skilled nursing services
when performed by a licensed registered nurse or a licensed practical nurse.
These skilled nursing services shall include, but not necessarily be limited to
dressing changes, maintaining patent airways, medication
administration/monitoring and urinary catheterizations.

(2) Skilled nursing services shall be directly and
specifically related to an active, written plan of care developed by a
registered nurse that is based on a written order from a physician, physician
assistant or nurse practitioner for skilled nursing services. This order shall
be recertified on an annual basis.

c. Psychiatric and psychological services performed by
licensed practitioners within the scope of practice are defined under state law
or regulations and covered as physicians' services under 42 CFR 440.50 or
medical or other remedial care under 42 CFR 440.60. These outpatient services
include individual medical psychotherapy, group medical psychotherapy coverage,
and family medical psychotherapy. Psychological and neuropsychological testing
are allowed when done for purposes other than educational diagnosis, school
admission, evaluation of an individual with intellectual disability prior to
admission to a nursing facility, or any placement issue. These services are
covered in the nonschool settings also. School providers who may render these
services when licensed by the state include psychiatrists, licensed clinical
psychologists, school psychologists, licensed clinical social workers,
professional counselors, psychiatric clinical nurse specialists, marriage and
family therapists, and school social workers.

d. Personal care services are covered under 42 CFR
440.167 and performed by persons qualified under this subsection. The personal
care assistant is supervised by a DMAS recognized school-based health
professional who is acting within the scope of licensure. This practitioner
develops a written plan for meeting the needs of the child, which is
implemented by the assistant. The assistant must have qualifications comparable
to those for other personal care aides recognized by the Virginia Department of
Medical Assistance Services. The assistant performs services such as assisting
with toileting, ambulation, and eating. The assistant may serve as an aide on a
specially adapted school vehicle that enables transportation to or from the
school or school contracted provider on days when the student is receiving a
Medicaid-covered service under the IEP. Children requiring an aide during
transportation on a specially adapted vehicle shall have this stated in the
IEP.

e. Medical evaluation services are covered as physicians'
services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR
440.60. Persons performing these services shall be licensed physicians,
physician assistants, or nurse practitioners. These practitioners shall
identify the nature or extent of a child's medical or other health related
condition.

f. Transportation is covered as allowed under 42 CFR
431.53 and described at State Plan Attachment 3.1-D (12VAC30-50-530).
Transportation shall be rendered only by school division personnel or
contractors. Transportation is covered for a child who requires transportation
on a specially adapted school vehicle that enables transportation to or from
the school or school contracted provider on days when the student is receiving
a Medicaid-covered service under the IEP. Transportation shall be listed in the
child's IEP. Children requiring an aide during transportation on a specially
adapted vehicle shall have this stated in the IEP.

g. Assessments are covered as necessary to assess or reassess
the need for medical services in a child's IEP and shall be performed by any of
the above licensed practitioners within the scope of practice. Assessments and
reassessments not tied to medical needs of the child shall not be covered.

5. DMAS will ensure through quality management review that
duplication of services will be monitored. School divisions have a
responsibility to ensure that if a child is receiving additional therapy
outside of the school, that there will be coordination of services to avoid
duplication of service.

D. Family planning services and supplies for individuals of
child-bearing age.

1. Service must be ordered or prescribed and directed or
performed within the scope of the license of a practitioner of the healing arts.

2. Family planning services shall be defined as those services
that delay or prevent pregnancy. Coverage of such services shall not include
services to treat infertility or services to promote fertility. Family planning
services shall not cover payment for abortion services and no funds shall be
used to perform, assist, encourage, or make direct referrals for abortions.

3. Family planning services as established by § 1905(a)(4)(C)
of the Social Security Act include annual family planning exams; cervical cancer
screening for women; sexually transmitted infection (STI) testing; lab services
for family planning and STI testing; family planning education, counseling, and
preconception health; sterilization procedures; nonemergency transportation to
a family planning service; and U.S. Food and Drug Administration approved
prescription and over-the-counter contraceptives, subject to limits in
12VAC30-50-210.

12VAC30-60-61. Services related to the Early and Periodic
Screening, Diagnosis and Treatment Program (EPSDT); community mental health
services for children; behavioral therapy services for children.

A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context indicates
otherwise:

"At risk" means one or more of the following: (i)
within the two weeks before the intake, the individual shall be screened by an
LMHP for escalating behaviors that have put either the individual or others at
immediate risk of physical injury; (ii) the parent/guardian is unable to manage
the individual's mental, behavioral, or emotional problems in the home and is
actively, within the past two to four weeks, seeking an out-of-home placement;
(iii) a representative of either a juvenile justice agency, a department of
social services (either the state agency or local agency), a community services
board/behavioral health authority, the Department of Education, or an LMHP, as
defined in 12VAC35-105-20, and who is neither an employee of nor consultant to
the intensive in-home (IIH) services or therapeutic day treatment (TDT)
provider, has recommended an out-of-home placement absent an immediate change
of behaviors and when unsuccessful mental health services are evident; (iv) the
individual has a history of unsuccessful services (either crisis intervention,
crisis stabilization, outpatient psychotherapy, outpatient substance abuse
services, or mental health support) within the past 30 days; (v) the treatment
team or family assessment planning team (FAPT) recommends IIH services or TDT
for an individual currently who is either: (a) transitioning out of residential
treatment facility Level C services, (b) transitioning out of a group home
Level A or B services, (c) transitioning out of acute psychiatric
hospitalization, or (d) transitioning between foster homes, mental health case
management, crisis intervention, crisis stabilization, outpatient
psychotherapy, or outpatient substance abuse services.

"Failed services" or "unsuccessful
services" means, as measured by ongoing behavioral, mental, or physical
distress, that the service or services did not treat or resolve the
individual's mental health or behavioral issues.

"Individual" means the Medicaid-eligible person
receiving these services and for the purpose of this section includes children
from birth up to 12 years of age or adolescents ages 12 through 20 years.

"Licensed assistant behavior analyst" means a
person who has met the licensing requirements of 18VAC85-150 and holds a valid
license issued by the Department of Health Professions.

"Licensed behavior analyst" means a person who
has met the licensing requirements of 18VAC85-150 and holds a valid license
issued by the Department of Health Professions.

"New service" means a community mental health
rehabilitation service for which the individual does not have a current service
authorization in effect as of July 17, 2011.

"Out-of-home placement" means placement in one or
more of the following: (i) either a Level A or Level B group home; (ii) regular
foster home if the individual is currently residing with his biological family
and, due to his behavior problems, is at risk of being placed in the custody of
the local department of social services; (iii) treatment foster care if the
individual is currently residing with his biological family or a regular foster
care family and, due to the individual's behavioral problems, is at risk of
removal to a higher level of care; (iv) Level C residential facility; (v)
emergency shelter for the individual only due either to his mental health or behavior
or both; (vi) psychiatric hospitalization; or (vii) juvenile justice system or
incarceration.

"Service-specific provider intake" means the
evaluation that is conducted according to the Department of Medical Assistance
Services (DMAS) intake definition set out in 12VAC30-50-130.

B. Utilization review requirements for all services in
this section.

1. The services described in this section shall be
rendered consistent with the definitions, service limits, and requirements
described in this section and in 12VAC30-50-130.

2. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

3. Individual service plans (ISPs) shall meet all of the
requirements set forth in 12VAC30-60-143 B 7.

C. IntensiveUtilization review of intensive
in-home (IIH) services for children and adolescents.

1. The service definition for intensive in-home (IIH) services
is contained in 12VAC30-50-130.

2. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from mental, behavioral or emotional
illness which results in significant functional impairments in major life
activities. Individuals must meet at least two of the following criteria on a
continuing or intermittent basis to be authorized for these services:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services or judicial system
are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

3. Prior to admission, an appropriate service-specific
provider intake, as defined in 12VAC30-50-130, shall be conducted by the
licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, or
LMHP-RP, documenting the individual's diagnosis and describing how service
needs can best be met through intervention provided typically but not solely in
the individual's residence. The service-specific provider intake shall describe
how the individual's clinical needs put the individual at risk of out-of-home
placement and shall be conducted face-to-face in the individual's residence.
Claims for services that are based upon service-specific provider intakes that
are incomplete, outdated (more than 12 months old), or missing shall not be
reimbursed.

4. An individual service plan (ISP) shall be fully completed,
signed, and dated by either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a
QMHP-C, or a QMHP-E and the individual and individual's parent/guardian within
30 days of initiation of services. The ISP shall meet all of the requirements
as defined in 12VAC30-50-226.

5. DMAS shall not reimburse for dates of services in which the
progress notes are not individualized and child-specific. Duplicated progress
notes shall not constitute the required child-specific individualized progress
notes. Each progress note shall demonstrate unique differences particular to
the individual's circumstances, treatment, and progress. Claim payments shall
be retracted for services that are supported by documentation that does not
demonstrate unique differences particular to the individual.

6. Services shall be directed toward the treatment of the
eligible individual and delivered primarily in the family's residence with the
individual present. As clinically indicated, the services may be rendered in
the community if there is documentation, on that date of service, of the
necessity of providing services in the community. The documentation shall
describe how the alternative community service location supports the identified
clinical needs of the individual and describe how it facilitates the
implementation of the ISP. For services provided outside of the home, there
shall be documentation reflecting therapeutic treatment as set forth in the ISP
provided for that date of service in the appropriately signed and dated
progress notes.

7. These services shall be provided when the clinical needs of
the individual put him at risk for out-of-home placement, as these terms are
defined in this section:

a. When services that are far more intensive than outpatient
clinic care are required to stabilize the individual in the family situation,
or

b. When the individual's residence as the setting for services
is more likely to be successful than a clinic.

The service-specific provider intake shall describe how the
individual meets either subdivision a or b of this subdivision.

8. Services shall not be provided if the individual is no
longer a resident of the home.

9. Services shall also be used to facilitate the transition to
home from an out-of-home placement when services more intensive than outpatient
clinic care are required for the transition to be successful. The individual
and responsible parent/guardian shall be available and in agreement to
participate in the transition.

10. At least one parent/legal guardian or responsible adult
with whom the individual is living must be willing to participate in the intensive
in-home services with the goal of keeping the individual with the family. In
the instance of this service, a responsible adult shall be an adult who lives
in the same household with the child and is responsible for engaging in therapy
and service-related activities to benefit the individual.

11. The enrolled service provider shall be licensed by
the Department of Behavioral Health and Developmental Services (DBHDS) as a
provider of intensive in-home services. The provider shall also have a provider
enrollment agreement with DMAS or its contractor in effect prior to the
delivery of this service that indicates that the provider will offer intensive
in-home services.

12. Services must only be provided by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E. Reimbursement shall
not be provided for such services when they have been rendered by a QPPMH as
defined in 12VAC35-105-20.

13. The billing unit for intensive in-home service shall be
one hour. Although the pattern of service delivery may vary, intensive in-home
services is an intensive service provided to individuals for whom there is an
ISP in effect which demonstrates the need for a minimum of three hours a week
of intensive in-home service, and includes a plan for service provision of a
minimum of three hours of service delivery per individual/family per week in
the initial phase of treatment. It is expected that the pattern of service
provision may show more intensive services and more frequent contact with the
individual and family initially with a lessening or tapering off of intensity
toward the latter weeks of service. Service plans shall incorporate an
individualized discharge plan that describes transition from intensive in-home
to less intensive or nonhome based services.

14. The ISP, as defined in 12VAC30-50-226, shall be updated as
the individual's needs and progress changes and signed by either the parent or
legal guardian and the individual. Documentation shall be provided if the
individual, who is a minor child, is unable or unwilling to sign the ISP. If
there is a lapse in services that is greater than 31 consecutive calendar days
without any communications from family members/legal guardian or the individual
with the service provider, the provider shall discharge the individual.
If the individual continues to need services, then a new intake/admission shall
be documented and a new service authorization shall be required.

15. The provider shall ensure that the maximum
staff-to-caseload ratio fully meets the needs of the individual.

16. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the service
provider shall contact the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers who are using the same
electronic health record for the individual shall meet requirements for
delivery of the notification, monthly updates, and discharge summary upon entry
of the information in the electronic health records.

17. Emergency assistance shall be available 24 hours per day,
seven days a week.

19. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or guardian, shall
inform him of the individual's receipt of IIH services. The documentation shall
include who was contacted, when the contact occurred, and what information was
transmitted.

D. TherapeuticUtilization review of therapeutic
day treatment for children and adolescents.

1. The service definition for therapeutic day treatment (TDT)
for children and adolescents is contained in 12VAC30-50-130.

2. Therapeutic day treatment is appropriate for children and
adolescents who meet one of the following:

a. Children and adolescents who require year-round treatment
in order to sustain behavior or emotional gains.

b. Children and adolescents whose behavior and emotional
problems are so severe they cannot be handled in self-contained or resource
emotionally disturbed (ED) classrooms without:

(1) This programming during the school day; or

(2) This programming to supplement the school day or school
year.

c. Children and adolescents who would otherwise be placed on
homebound instruction because of severe emotional/behavior problems that
interfere with learning.

d. Children and adolescents who (i) have deficits in social
skills, peer relations or dealing with authority; (ii) are hyperactive; (iii)
have poor impulse control; (iv) are extremely depressed or marginally connected
with reality.

e. Children in preschool enrichment and early intervention
programs when the children's emotional/behavioral problems are so severe that
they cannot function in these programs without additional services.

3. The service-specific provider intake shall document the
individual's behavior and describe how the individual meets these specific
service criteria in subdivision 2 of this subsection.

4. Prior to admission to this service, a service-specific
provider intake shall be conducted by the LMHP as defined in 12VAC35-105-20.

5. An ISP shall be fully completed, signed, and dated by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or QMHP-E and by the
individual or the parent/guardian within 30 days of initiation of services and
shall meet all requirements of an ISP as defined in 12VAC30-50-226. Individual
progress notes shall be required for each contact with the individual and shall
meet all of the requirements as defined in 12VAC30-50-130.

6. Such services shall not duplicate those services provided
by the school.

7. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral or emotional illness which results in significant functional
impairments in major life activities. Individuals shall meet at least two of
the following criteria on a continuing or intermittent basis:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services, or judicial
system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

8. The enrolled provider of therapeutic day treatment for
child and adolescent services shall be licensed by DBHDS to provide day support
services. The provider shall also have a provider enrollment agreement in
effect with DMAS prior to the delivery of this service that indicates that the
provider offers therapeutic day treatment services for children and
adolescents.

10. The minimum staff-to-individual ratio as defined by DBHDS
licensing requirements shall ensure that adequate staff is available to meet
the needs of the individual identified on the ISP.

11. The program shall operate a minimum of two hours per day
and may offer flexible program hours (i.e., before or after school or during
the summer). One unit of service shall be defined as a minimum of two hours but
less than three hours in a given day. Two units of service shall be defined as
a minimum of three but less than five hours in a given day. Three units of
service shall be defined as five or more hours of service in a given day.

12. Time required for academic instruction when no treatment
activity is going on shall not be included in the billing unit.

13. Services shall be provided following a service-specific
provider intake that is conducted by an LMHP, LMHP-supervisee, LMHP-resident,
or LMHP-RP. An LMHP, LMHP-supervisee, or LMHP-resident shall make and document
the diagnosis. The service-specific provider intake shall include the elements
as defined in 12VAC30-50-130.

14. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider
shall collaborate with the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers using the same electronic
health record for the individual shall meet requirements for delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.

15. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the child's receipt of community mental health
rehabilitative services. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted. The
parent/legal guardian shall be required to give written consent that this
provider has permission to inform the primary care provider of the child's or
adolescent's receipt of community mental health rehabilitative services.

16. Providers shall comply with DMAS marketing requirements as
set out in 12VAC30-130-2000. Providers that DMAS determines have violated these
marketing requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.

17. If there is a lapse in services greater than 31
consecutive calendar days, the provider shall discharge the individual. If the
individual continues to need services, a new intake/admission documentation
shall be prepared and a new service authorization shall be required.

E. Community-basedUtilization review of
community-based services for children and adolescents under 21 years of age
(Level A).

1. The staff ratio must be at least 1 to 6 during the day and
at least 1 to 10 between 11 p.m. and 7 a.m. The program director supervising
the program/group home must be, at minimum, a QMHP-C or QMHP-E (as defined in
12VAC35-105-20). The program director must be employed full time.

2. In order for Medicaid reimbursement to be approved, at
least 50% of the provider's direct care staff at the group home must meet DBHDS
paraprofessional staff criteria, defined in 12VAC35-105-20.

3. Authorization is required for Medicaid reimbursement. All
community-based services for children and adolescents under 21 (Level A)
require authorization prior to reimbursement for these services. Reimbursement
shall not be made for this service when other less intensive services may
achieve stabilization.

4. Services must be provided in accordance with an individual
service plan (ISP), which must be fully completed within 30 days of
authorization for Medicaid reimbursement.

5. Prior to admission, a service-specific provider intake
shall be conducted according to DMAS specifications described in
12VAC30-50-130.

6. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

7. If an individual receiving community-based services for
children and adolescents under 21 (Level A) is also receiving case management
services, the provider shall collaborate with the case manager by notifying the
case manager of the provision of Level A services and shall send monthly
updates on the individual's progress. When the individual is discharged from
Level A services, a discharge summary shall be sent to the case manager within
30 days of the service discontinuation date. Service providersProviders
and case managers who are using the same electronic health record for the
individual shall meet requirements for the delivery of the notification,
monthly updates, and discharge summary upon entry of this documentation into
the electronic health record.

F. TherapeuticUtilization review of therapeutic
behavioral services for children and adolescents under 21 years of age (Level
B).

1. The staff ratio must be at least 1 to 4 during the day and
at least 1 to 8 between 11 p.m. and 7 a.m. The clinical director must be a
licensed mental health professional. The caseload of the clinical director must
not exceed 16 individuals including all sites for which the same clinical
director is responsible.

2. The program director must be full time and be a QMHP-C or
QMHP-E with a bachelor's degree and at least one year's clinical experience.

3. For Medicaid reimbursement to be approved, at least 50% of
the provider's direct care staff at the group home shall meet DBHDS
paraprofessional staff criteria, as defined in 12VAC35-105-20. The program/group
home must coordinate services with other providers.

4. All therapeutic behavioral services (Level B) shall be
authorized prior to reimbursement for these services. Services rendered without
such prior authorization shall not be covered.

5. Services must be provided in accordance with an ISP, which
shall be fully completed within 30 days of authorization for Medicaid
reimbursement.

6. Prior to admission, a service-specific provider intake
shall be performed using all elements specified by DMAS in 12VAC30-50-130.

7. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

8. If an individual receiving therapeutic behavioral services
for children and adolescents under 21 (Level B) is also receiving case
management services, the therapeutic behavioral services provider must
collaborate with the care coordinator/case manager by notifying him of the
provision of Level B services and the Level B services provider shall send
monthly updates on the individual's treatment status. When the individual is
discharged from Level B services, a discharge summary shall be sent to the care
coordinator/case manager within 30 days of the discontinuation date.

9. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the individual's receipt of these Level B
services. The documentation shall include who was contacted, when the contact
occurred, and what information was transmitted. If these individuals are
children or adolescents, then the parent/legal guardian shall be required to
give written consent that this provider has permission to inform the primary
care provider of the individual's receipt of community mental health
rehabilitative services.

G. Utilization review. Utilization reviews for
community-based services for children and adolescents under 21 years of age
(Level A) and therapeutic behavioral services for children and adolescents
under 21 years of age (Level B) shall include determinations whether providers
meet all DMAS requirements, including compliance with DMAS marketing
requirements. Providers that DMAS determines have violated the DMAS marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000(E).

H. Utilization review of behavioral therapy services for
children.

1. In order for Medicaid to cover behavioral therapy
services, the provider shall be enrolled with DMAS or its contractor as a
Medicaid provider. The provider enrollment agreement shall be in effect prior
to the delivery of services for Medicaid reimbursement.

2. Behavioral therapy services shall be covered for
individuals younger than 21 years of age when recommended by the individual's primary
care provider, licensed physician, licensed physician assistant, or licensed
nurse practitioner and determined by DMAS or its contractor to be medically
necessary to correct or ameliorate significant impairments in major life
activities that have resulted from either developmental, behavioral, or mental
disabilities.

3. Behavioral therapy services require service
authorization. Services shall be authorized only when eligibility and medical
necessity criteria are met.

4. Prior to treatment, an appropriate service-specific
provider intake shall be conducted, documented, signed, and dated by a licensed
behavior analyst (LBA), licensed assistant behavior analyst (LABA), or LMHP,
LMHP-R, LMHP-RP, or LMHP-S, acting within the scope of his practice, documenting
the individual's diagnosis (including a description of the behavior or
behaviors targeted for treatment with their frequency, duration, and intensity)
and describing how service needs can best be met through behavioral therapy.
The service-specific provider intake shall be conducted face-to-face in the
individual's residence with the individual and parent or guardian. A new
service-specific provider intake shall be conducted and documented every three
months, or more often if needed, to observe the individual and family
interaction, review clinical data, and revise the ISP as needed.

5. The ISP shall be developed upon admission to the service
and reviewed within 30 days of admission to the service to ensure that all
treatment goals are reflective of the individual's clinical needs and shall
describe each treatment goal, targeted behavior, one or more measurable
objectives for each targeted behavior, the behavioral modification strategy to
be used to manage each targeted behavior, the plan for parent or caregiver
training, care coordination, and the measurement and data collection methods to
be used for each targeted behavior in the ISP. The ISP shall be fully
completed, signed, and dated by an LBA, LABA, LMHP, LMHP-R, LMHP-RP, or LMHP-S
and the individual and individual's parent or guardian. The ISP shall be
reviewed every three months (at the same time the service-specific provider
intake is conducted and documented) and updated as the individual progresses
and his needs change, but at least annually, and shall be signed by either the
parent or legal guardian and the individual. Documentation shall be provided if
the individual, who is a minor child, is unable or unwilling to sign the ISP.

6. Reimbursement for the initial service-specific provider
intake and the initial ISP shall be limited to five hours without service
authorization. If additional time is needed to complete these documents,
service authorization shall be required.

7. Clinical supervision shall be required for Medicaid
reimbursement of behavioral therapy services that are rendered by an LABA,
LMHP-R, LMHP-RP, or LMHP-S or unlicensed staff consistent with the scope of
practice as described by the applicable Virginia Department of Health
Professions regulatory board. Clinical supervision shall occur at least weekly
and, as documented in the individual's medical record, shall include a review
of progress notes and data and dialogue with supervised staff about the
individual’s progress and the effectiveness of the ISP.

8. The following shall not be covered under this service:

a. Screening to identify physical, mental, or developmental
conditions that may require evaluation or treatment. Screening is covered as an
EPSDT service provided by the primary care provider and is not covered as a
behavioral therapy service under this section.

b. Services other than the initial service-specific
provider intake that are provided but are not based upon the individual's ISP
or linked to a service in the ISP. Time not actively involved in providing
services directed by the ISP shall not be reimbursed.

c. Services that are based upon an incomplete, missing, or
outdated service-specific provider intake or ISP.

d. Sessions that are conducted for family support,
education, recreational, or custodial purposes, including respite or child
care.

e. Services that are provided by a provider but are
rendered primarily by a relative or guardian who is legally responsible for the
individual's care.

f. Services that are provided in a clinic or provider's
office without documented justification for the location in the ISP.

g. Services that are provided in the absence of the
individual and a parent or other authorized caregiver identified in the ISP
with the exception of treatment review processes described in 12VAC30-60-61 H
11 e, care coordination, and clinical supervision.

h. Services provided by a local education agency.

i. Provider travel time.

9. Behavioral therapy services shall not be reimbursed
concurrently with community mental health services described in 12VAC30-50-130
B 5 or 12VAC30-50-226, or behavioral, psychological, or psychiatric therapeutic
consultation described in 12VAC30-120-756, 12VAC30-120-1000, or
12VAC30-135-320.

10. If the individual is receiving targeted case management
services under the Medicaid state plan (defined in 12VAC30-50-410 through
12VAC30-50-491, the provider shall notify the case manager of the provision of
behavioral therapy services unless the parent or guardian requests that the
information not be released. In addition, the provider shall send monthly
updates to the case manager on the individual's status pursuant to a valid
release of information. A discharge summary shall be sent to the case manager
within 30 days of the service discontinuation date. A refusal of the parent or
guardian to release information shall be documented in the medical record for
the date the request was discussed.

11. Other standards to ensure quality of services:

a. Services shall be delivered only by an LBA, LABA, LMHP,
LMHP-R, LMHP-RP, LMHP-S, or clinically supervised unlicensed staff consistent
with the scope of practice as described by the applicable Virginia Department
of Health Professions regulatory board.

b. Individual-specific services shall be directed toward
the treatment of the eligible individual and delivered in the family's
residence unless an alternative location is justified and documented in the
ISP.

c. Individual-specific progress notes shall be created
contemporaneously with the service activities and shall document the name and
Medicaid number of each individual; the provider's name, signature, and date;
and time of service. Documentation shall include activities provided, length of
services provided, the individual's reaction to that day's activity, and
documentation of the individual's and the parent or caregiver's progress toward
achieving each behavioral objective through analysis and reporting of
quantifiable behavioral data. Documentation shall be prepared to clearly
demonstrate efficacy using baseline and service-related data that shows
clinical progress and generalization for the child and family members toward
the therapy goals as defined in the service plan.

d. Documentation of all billed services shall include the
amount of time or billable units spent to deliver the service and shall be
signed and dated on the date of the service by the practitioner rendering the
service.

e. Billable time is permitted for the LBA, LABA, LMHP,
LMHP-R, LMHP-RP, or LMHP-S to better define behaviors and develop documentation
strategies to measure treatment performance and the efficacy of the ISP
objectives, provided that these activities are documented in a progress note as
described in subdivision 11 c of this subsection.

12. Failure to comply with any of the requirements in
12VAC30-50-130 or in this section shall result in retraction.

A. Payment for behavioral therapy services for individuals
younger than 21 years of age shall be the lower of the state agency fee
schedule or actual charge (charge to the general public). All private and
governmental fee-for-service providers shall be reimbursed according to the
same methodology. The agency's rates were set as of October 1, 2011, and are
effective for services on or after that date until rates are revised. Rates are
published on the agency's website at www.dmas.virginia.gov.

B. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

12VAC30-120-380. MCO responsibilities.

A. The MCO shall provide, at a minimum, all medically
necessary covered services provided under the State Plan for Medical Assistance
and further defined by written DMAS regulations, policies and instructions,
except as otherwise modified or excluded in this part.

1. Nonemergency services provided by hospital emergency
departments shall be covered by MCOs in accordance with rates negotiated
between the MCOs and the hospital emergency departments.

2. Services that shall be provided outside the MCO network
shall include, but are not limited to, those services identified and
defined by the contract between DMAS and the MCO. Services reimbursed by DMAS
include (i) dental and orthodontic services for children up to age 21 years;
(ii) for all others, dental services (as described in 12VAC30-50-190), (iii)
school health services, (iv) community mental health services
(12VAC30-50-130 and 12VAC30-50-226); (v) early intervention services
provided pursuant to Part C of the Individuals with Disabilities Education Act
(IDEA) of 2004 (as defined in 12VAC30-50-131 and 12VAC30-50-415), and);
(vi) long-term care services provided under the § 1915(c) home-based and
community-based waivers including related transportation to such authorized
waiver services; and (vii) behavioral therapy services as defined in
12VAC30-50-130.

3. The MCOs shall pay for emergency services and family
planning services and supplies whether such services are provided inside or
outside the MCO network.

B. EPSDT services shall be covered by the MCO and defined by
the contract between DMAS and the MCO. The MCO shall have the authority to
determine the provider of service for EPSDT screenings.

C. The MCOs shall report data to DMAS under the contract
requirements, which may include data reports, report cards for members, and ad
hoc quality studies performed by the MCO or third parties.

D. Documentation requirements.

1. The MCO shall maintain records as required by federal and
state law and regulation and by DMAS policy. The MCO shall furnish such
required information to DMAS, the Attorney General of Virginia or his
authorized representatives, or the State Medicaid Fraud Control Unit on request
and in the form requested.

2. Each MCO shall have written policies regarding member
rights and shall comply with any applicable federal and state laws that pertain
to member rights and shall ensure that its staff and affiliated providers take
those rights into account when furnishing services to members in accordance
with 42 CFR 438.100.

3. Providers shall be required to refund payments if they
fail to maintain adequate documentation to support billed activities.

E. The MCO shall ensure that the health care provided to its
members meets all applicable federal and state mandates, community standards
for quality, and standards developed pursuant to the DMAS managed care quality
program.

F. The MCOs shall promptly provide or arrange for the
provision of all required services as specified in the contract between the
Commonwealth and the MCO. Medical evaluations shall be available within 48
hours for urgent care and within 30 calendar days for routine care. On-call
clinicians shall be available 24 hours per day, seven days per week.

G. The MCOs shall meet standards specified by DMAS for
sufficiency of provider networks as specified in the contract between the
Commonwealth and the MCO.

H. Each MCO and its subcontractors shall have in place, and
follow, written policies and procedures for processing requests for initial and
continuing authorizations of service. Each MCO and its subcontractors shall
ensure that any decision to deny a service authorization request or to
authorize a service in an amount, duration, or scope that is less than
requested, be made by a health care professional who has appropriate clinical
expertise in treating the member's condition or disease. Each MCO and its
subcontractors shall have in effect mechanisms to ensure consistent application
of review criteria for authorization decisions and shall consult with the
requesting provider when appropriate.

I. In accordance with 42 CFR 447.50 through 42 CFR
447.60, MCOs shall not impose any cost sharing obligations on members except as
set forth in 12VAC30-20-150 and 12VAC30-20-160.

J. An MCO may not prohibit, or otherwise restrict, a health
care professional acting within the lawful scope of practice, from advising or
advocating on behalf of a member who is his patient in accordance with 42 CFR
438.102.

K. An MCO that would otherwise be required to reimburse for
or provide coverage of a counseling or referral service is not required to do
so if the MCO objects to the service on moral or religious grounds and
furnishes information about the service it does not cover in accordance with 42
CFR 438.102.

VA.R. Doc. No. R13-3527; Filed June 30, 2017, 3:41 p.m.

TITLE 12. HEALTH

DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

Proposed Regulation

Titles of Regulations: 12VAC30-60. Standards
Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-5).

Basis: Section 32.1-325 of the Code of Virginia grants
to the Board of Medical Assistance Services the authority to administer and
amend the Plan for Medical Assistance and to make, adopt, promulgate, and
enforce regulations to implement the state plan. Section 32.1-324 of the Code
of Virginia authorizes the Director of the Department of Medical Assistance
Services (DMAS) to administer and amend the Plan for Medical Assistance
according to the board's requirements. The Medicaid authority as established by
§ 1902(a) of the Social Security Act (42 USC § 1396a) provides
governing authority for payments for services.

Purpose: The purpose of this action is to implement
regulatory changes to more clearly reflect DMAS utilization review procedures.
This action will not affect the health, safety, or welfare of Medicaid
individuals or citizens of the Commonwealth.

Substance: Currently, DMAS regulations do not establish
the steps that are involved in a utilization review. Specifically, the
regulations do not include how a utilization review is initiated, what letters
or communications are sent, and what the deadlines for document submission are.
DMAS is proposing these regulations to provide greater clarity to providers,
Medicaid members, and members of the public about this process. The proposed
changes reflect current DMAS process and do not include changes in the
utilization review process.

Issues: The advantages to these proposed changes are
that they will provide more information and clarity to Medicaid and FAMIS
providers and members and the general public about the utilization review
process. There are no disadvantages to the public, businesses, or the
Commonwealth related to these proposed changes.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The Director
(Director) of the Department of Medical Assistance Services (DMAS) proposes to
amend these regulations to outline the process of utilization review for the
Medicaid and State Children's Health Insurance Program (SCHIP) programs.

Result of Analysis. Benefits likely outweigh costs for all
proposed regulatory changes.

Estimated Economic Impact. Current regulations require service
providers to maintain certain records and states that DMAS or its designee will
perform reviews of the utilization of all Medicaid-covered services but does
not detail how those reviews will take place. The Director proposes to expand
the description of a utilization review to include rules for the utilization
review that have been set by case law or are part of the provider agreement
that all providers must sign in order to receive Medicaid reimbursement. This
additional description includes a requirement that providers supply
documentation to DMAS or its designee "immediately upon demand or upon a
timeframe specified in writing by DMAS or its designee" and requirements
for Preliminary Findings Letters and for additional documentation allowed.

As all additional requirements in the proposed regulations are
already part of the enforceable contract between DMAS and providers, or are
likely enforceable due to prior court decision, no providers are likely to
incur costs on account of these proposed regulatory changes. To the extent that
these proposed changes add clarity to the requirements for utilization reviews,
all interested parties will benefit.

Businesses and Entities Affected. These proposed regulatory
changes will affect all Medicaid and SCHIP providers.

Localities Particularly Affected. No locality is likely to be
particularly affected by these proposed regulatory changes.

Projected Impact on Employment. These proposed regulatory
changes are unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Commonwealth.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. No small businesses are likely to
incur any additional costs on account of these proposed regulatory changes.

Alternative Method that Minimizes Adverse Impact. No small
businesses are likely to incur any additional costs on account of these
proposed regulatory changes.

Adverse Impacts:

Businesses. No businesses are likely to incur any additional
costs on account of these proposed regulatory changes.

Localities. Localities in the Commonwealth are unlikely to see
any adverse impacts on account of these proposed regulatory changes.

Other Entities. No other entities are likely to be adversely
affected by these proposed changes.

Agency Response to Economic Impact Analysis: The agency
has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and raises no issues with the analysis.

Summary:

The proposed amendments standardize the utilization review
process for all provider types, including (i) what letters are sent to
providers, (ii) what documentation may be submitted and when it may be
submitted, and (iii) what deadlines apply.

A. These utilizationThe requirements in
this section shall apply to all Medicaid covered services and all
Medicaid providers unless otherwise specified.

1. Providers shall be required to maintain documentation
detailing all required information about the individuals who are in the
provider's care. Such documentation shall fully disclose the extent of services
provided in order to support the provider's claims for reimbursement for
services rendered. All provider documentation about individuals in the
provider's care shall be written, signed, and dated at the time the services
are rendered.

2. Medicaid providers shall provide all requested records
to DMAS or its designee immediately upon demand or upon a timeframe specified
in writing by DMAS or its designee.

3. Notwithstanding any other DMAS regulation, claims
selected for utilization review shall not be corrected or re-billed.

B. DMAS or its designee shall perform utilization reviews
of all Medicaid services.

1. A utilization review is initiated when DMAS or its
designee:

a. Issues a written notice;

b. Requests onsite access to records;

c. Issues a preliminary findings letter; or

d. Commences a claims analysis.

2. After a utilization review is initiated, DMAS or its
designee shall issue a preliminary findings letter. The preliminary findings
letter shall include a date by which the provider may submit any additional
documentation. DMAS or its designee shall only consider documentation
identified and submitted by the provider prior to the specified deadline. DMAS
or its designee shall only consider documentation that was created
contemporaneously with the date of service.

3. Following a review of documentation submitted according
to subdivision 2 of this subsection, if any, DMAS or its designee shall issue a
final overpayment letter.

4. Providers who are determined not to be in compliance
with DMAS requirements shall be subject to §§ 32.1-312 and 32.1-313 of the Code
of Virginia, 12VAC30-80-130, and 12VAC30-90-250 through 12VAC30-90-257 for the
repayment of any overpayments to DMAS that are identified in the final
overpayment letter.

B.C. Some Medicaid covered services
require an approved service authorization prior to service delivery in order
for reimbursement to occur. 1. To obtain service authorization, all
providers' information supplied to the Department of Medical Assistance
Services (DMAS), service authorization contractor, or the behavioral health
service authorization contractor shall be fully substantiated throughout
individuals' medical records. 2. Providers shall be required to maintain
documentation detailing all relevant information about the Medicaid individuals
who are in providers' care. Such documentation shall fully disclose the extent
of services provided in order to support providers' claims for reimbursement
for services rendered. This documentation shall be written, signed, and dated
at the time the services are rendered unless specified otherwise.

C. DMAS, or its designee, shall perform reviews of the
utilization of all Medicaid covered services pursuant to 42 CFR 440.260 and 42
CFR Part 456.

D. DMAS shall recover expenditures made for covered
services when providers' documentation does not comport with standards
specified in all applicable regulations.

E. Providers who are determined not to be in compliance
with DMAS requirements shall be subject to 12VAC30-80-130 for the repayment of
those overpayments to DMAS.

F.D. Utilization review requirements specific
to the community mental health services, as set out in
12VAC30-50-130 and 12VAC30-50-226, shall be as follows:

1. To apply to be reimbursed as a Medicaid provider, the
required Department of Behavioral Health and Developmental Services (DBHDS)
license shall be either a full, annual, triennial, or conditional license.
Providers must be enrolled with DMAS or the BHSA to be reimbursed. Once a
health care entity has been enrolled as a provider, it shall maintain, and
update periodically as DMAS requires, a current Provider Enrollment Agreement
for each Medicaid service that the provider offers.

2. Health care entities with provisional licenses shall not be
reimbursed as Medicaid providers of community mental health services.

3. Payments shall not be permitted to health care entities
that either hold provisional licenses or fail to enter into a Medicaid Provider
Enrollment Agreement for a service prior to rendering that service.

4. The behavioral health service authorization contractor
shall apply a national standardized set of medical necessity criteria in use in
the industry, such as McKesson InterQual Criteria, or an equivalent standard
authorized in advance by DMAS. Services that fail to meet medical necessity
criteria shall be denied service authorization.

Basis: Section 32.1-325 of the Code of Virginia grants
to the Board of Medical Assistance Services the authority to administer and
amend the Plan for Medical Assistance and to make, adopt, promulgate, and
enforce regulations to implement the state plan, and § 32.1-324 of the Code of
Virginia authorizes the Director of the Department of Medical Assistance
Services (DMAS) to administer and amend the Plan for Medical Assistance
according to the board's requirements. The Medicaid authority as established by
§ 1902(a) of the Social Security Act (42 USC § 1396a) provides
governing authority for payments for services.

Section 1905 of the Social Security Act requires state Medicaid
programs to provide early and periodic screening, diagnosis, and treatment
(EPSDT) services for individuals who are eligible under the plan and are
younger than the age of 21 years, to include "Such other necessary health
care, diagnostic services, treatment, and other measures described in § 1905(a)
to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services, whether or not such services
are covered under the State plan." If an individual is determined through
an EPSDT screening to need a medical service that is not otherwise covered in
Virginia's State Plan, then this provision in federal law requires the
Commonwealth to cover that service. Behavioral therapy services are an EPSDT
service.

Purpose: The proposed regulatory action is intended to
promote an improved quality of Medicaid-covered behavioral therapy services
provided to children and adolescents. The proposed regulation will
differentiate Medicaid's coverage of behavioral therapy and applied behavior
analysis services from coverage of community mental health and other
developmental services. This regulatory action is essential to protect the
health, safety, and welfare of these affected individuals and to ensure the
quality of services rendered to children and adolescents who demonstrate the
medical need for EPSDT behavioral therapy services. Regulations are needed to
establish clear criteria for Medicaid payment of these services. Regulatory
action is needed to ensure that Medicaid individuals and their families and
service providers are well informed about service specifications prior to
receiving or providing these services. These services will allow children
receiving services to improve interactions with their schools, families,
communities, future employers, and jobs and thus benefit a broad range of
citizens. These regulations are not expected to negatively affect the health,
safety, or welfare of citizens of the Commonwealth.

Substance: Currently, Medicaid payment for behavioral
therapy services is being authorized on an individual case basis under the
authority provided by the basic EPSDT definition found in 12VAC30-50-130 B. The
absence of consistently applied definitions, service requirements, required
provider qualifications, and quality assurance standards might result in
arbitrary decisions that cannot be sustained in an appeal. With increasing
numbers of children being diagnosed with autism and autism spectrum disorders
in need of such services, the individual-case-basis method of covering these
services is no longer satisfactory or appropriate.

DMAS proposes to initiate uniform coverage of behavioral
therapy services for individuals under the age of 21 years who meet the medical
necessity criteria. Trained professionals rendering early intensive treatment,
including applied behavior analysis techniques, has been shown to be effective
in ameliorating impairments in major life functions arising from autism
spectrum disorders and other diagnosed conditions. Coverage of EPSDT behavioral
therapy services will not cause more individuals to be eligible for this
service but will ensure appropriate treatment of eligible children who are
already in the care delivery system as well as those initiating behavioral
therapy services.

Prior to treatment, an appropriate health care practitioner
conducts an intake documenting the child's medical and psychiatric diagnosis
and describing how service needs can best be met through behavioral therapy
interventions. The assessment includes a description of the behavior or
behaviors targeted for treatment, including data on the frequency, duration, and
intensity of the behavior or behaviors. An individualized service plan (ISP) is
developed based on the assessment. The ISP describes each targeted behavior,
the behavioral modification strategy to be used to manage each targeted
behavior, and the measurement and data collection methods to be used for each
targeted behavior in the plan.

Behavioral analysis treatment strategies are systematic
interventions that are primarily provided in the family home. Family training
and counseling related to the implementation of the behavioral therapy shall be
included as part of the behavioral therapy service. Behavioral therapy may be
intermittently provided in community settings when approved settings are deemed
by DMAS or its contractor as medically necessary treatment. These services are
designed to enhance communication skills and decrease maladaptive patterns of
behavior that, if left untreated, could lead to more complex problems and the
need for a greater or a more restrictive level of care, such as institutionalization.
Successful implementation of behavioral therapy services requires the
participation of a parent or guardian.

The service goal is to ensure that the member's family is
trained to successfully manage clinically designed behavioral modification
strategies in the home setting. The family involvement in therapy is meant to
increase the child's adaptive functioning by training the family in effective
methods of behavioral modification strategies. Family members do not have to be
present during all hours of therapy. Family members must be present and
participate with their treatment plan objectives in an effective manner as
documented by the clinical supervisor.

EPSDT behavioral therapy services are intended to improve the
functional behaviors of the member by integrating multidisciplinary clinical
and medical services with the behavioral therapy protocol to increase the
member's adaptive functioning and communicative abilities. Treatment results
must be documented to indicate a generalization of behaviors across different
settings to maintain the targeted functioning outside of the treatment setting
in the patient's residence and the larger community within which the individual
resides.

Behavioral therapy services are currently excluded from
Medicaid managed care contracts and reimbursed by the behavioral health
services administrator (currently, Magellan) on a fee-for-service basis.
Technical corrections are made to the catchlines of several existing services
in 12VAC30-60-61 to create consistency in regulatory text and improve
readability.

Issues: The proposed regulation is advantageous to
individuals and their families by ensuring that Medicaid funded behavioral
therapy services are provided by licensed practitioners with the education,
experience, and clinical training necessary to effectively correct or
ameliorate problematic behaviors through the use of evidence based behavior
modification principles. Regulatory action will ensure that individuals, their
families, and service providers are well informed about Medicaid service
requirements prior to receiving or providing these services, thereby avoiding
DMAS recovery of provider payments made for inappropriate or inadequate
services. This regulatory action will also support the efforts of DMAS and its
contractors to provide effective care coordination and administrative oversight
of service delivery by clarifying provider requirements and service delivery
requirements in the Virginia Administrative Code. The primary advantage to the
Commonwealth, in the setting of these criteria and standards, will be the
statewide uniform application of policies that should result in fewer costly
provider appeals and reduced risks for fraud, waste, and abuse. There are no
disadvantages to the Commonwealth for this action.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The proposed
regulation establishes in the Virginia Administrative Code uniform and specific
standards for diagnosis and provision of behavioral therapy services under
Medicaid for young people from birth through the age of 21.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. The proposed regulation establishes
in the Virginia Administrative Code Medicaid coverage for behavioral therapy
services for young people from birth through the age of 21 under the authority
of the Early and Periodic Screening, Diagnosis and Treatment program. To be
covered for this service, children and adolescents must have autism or autism
spectrum disorders, or other similar developmental delays as demonstrated by
their lack of communication skills or lack of interaction with their
environments.

Prior to 2012 these services were already covered by Medicaid,
but there were no uniform standards. The coverage decisions were made on a
case-by-case basis. In 2012, the Department of Medical Assistance Services
(DMAS) adopted a service manual setting out uniform rules for coverage and
provision of behavioral therapy services (e.g., rules for provider enrollment,
eligibility criteria, limitations, service authorization requirements, etc.).
In December 2013, DMAS contracted Magellan Health to administer the provision
of behavioral therapy services. Selection of a behavioral services
administrator to run the program marked the beginning of a significant increase
in provision of these services. In fiscal year 2013, 524 individuals received
these services at a cost of approximately $12.2 million. In calendar year 2014,
$28.2 million was spent on services provided to 1,831 individuals. In calendar
year 2015, the expenditures and recipients increased to $41.6 million and
2,313, respectively. In calendar year 2016, expenditures stood at $60.6 million
and the number of recipients was 2,996.

While the provision of behavioral therapy services has grown
significantly in the recent past, the impact of the proposed regulation on
utilization is expected to be neutral. These services have been provided
according to the uniform standards set out in the service manual since 2012.
Consistent with the service manual, this action specifies in the regulation the
behavioral service requirements, medical necessity criteria, provider clinical
assessment and intake procedures, service planning and progress measurement
requirements, care coordination, clinical supervision, and other standards.

The main effect of the proposed changes is establishing clear
criteria for Medicaid payment of these services in the Virginia Administrative
Code and consequently providing legal basis for the programs administration.
Having clear criteria in regulations is also expected to help protect the
health, safety, and welfare of the affected children by improving the
uniformity of service quality across providers.

Businesses and Entities Affected. As of August 2016, 348
behavioral therapy providers were credentialed with Magellan (only 89 of which
actively provided services in 2016) and there were 488 licensed behavioral
analysts and 103 licensed assistant behavioral analysts in the Commonwealth. In
2016, 2,996 individuals received these services.

Projected Impact on Employment. No significant impact on
employment is expected.

Effects on the Use and Value of Private Property. No
significant impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate
development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The Department of Medical Assistance
Services estimates that 90% of the current providers are small businesses. The
proposed amendments are not anticipated to create significant costs or other
effects on small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
amendments are not anticipated to have an adverse impact on small businesses.

Adverse Impacts:

Businesses. DMAS estimates that 10% of the current providers
are non-small businesses. The proposed amendments are not anticipated to create
significant costs or other effects on non-small businesses.

Localities. The proposed amendments will not adversely affect
localities.

Other Entities. The proposed amendments will not adversely
affect other entities.

Agency's Response to Economic Impact Analysis: The
agency has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and raises no issues with this analysis.

Summary:

The proposed amendments establish Medicaid coverage for
behavioral therapy services for children under the authority of the Early and
Periodic Screening, Diagnosis and Treatment (EPSDT) program. EPSDT is a
mandatory Medicaid-covered service that offers preventive, diagnostic, and treatment
health care services to young people from birth through the age of 21 years. To
be covered for this service, a child must have a psychiatric diagnosis relevant
to the need for behavioral therapy services, including autism, autism spectrum
disorders, or other similar developmental delays and must meet the medical
necessity criteria. The proposed regulations define the behavioral therapy
service requirements, medical necessity criteria, provider clinical assessment
and intake procedures, service planning and progress measurement requirements,
care coordination, clinical supervision, and other standards to assure quality.
The behavioral therapy service will be reimbursed by DMAS outside of the
Medallion 3 managed care contracts.

12VAC30-50-130. Nursing facility services, EPSDT, including
school health services and family planning.

A. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.

Service must be ordered or prescribed and directed or
performed within the scope of a license of the practitioner of the healing
arts.

B. Early and periodic screening and diagnosis of individuals
under 21 years of age, and treatment of conditions found.

1. Payment of medical assistance services shall be made on
behalf of individuals under 21 years of age, who are Medicaid eligible, for
medically necessary stays in acute care facilities, and the accompanying
attendant physician care, in excess of 21 days per admission when such services
are rendered for the purpose of diagnosis and treatment of health conditions
identified through a physical examination.

2. Routine physicals and immunizations (except as provided
through EPSDT) are not covered except that well-child examinations in a private
physician's office are covered for foster children of the local social services
departments on specific referral from those departments.

3. Orthoptics services shall only be reimbursed if medically
necessary to correct a visual defect identified by an EPSDT examination or
evaluation. The department shall place appropriate utilization controls upon
this service.

4. Consistent with the Omnibus Budget Reconciliation Act of
1989 § 6403, early and periodic screening, diagnostic, and treatment services
means the following services: screening services, vision services, dental
services, hearing services, and such other necessary health care, diagnostic
services, treatment, and other measures described in Social Security Act §
1905(a) to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services and which are medically
necessary, whether or not such services are covered under the State Plan and
notwithstanding the limitations, applicable to recipients ages 21 and over,
provided for by § 1905(a) of the Social Security Act.

5. Community mental health services. These services in order
to be covered (i) shall meet medical necessity criteria based upon diagnoses
made by LMHPs who are practicing within the scope of their licenses and (ii)
are reflected in provider records and on providers' claims for services by
recognized diagnosis codes that support and are consistent with the requested
professional services.

a. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context clearly
indicates otherwise:

"Adolescent or child" means the individual receiving
the services described in this section. For the purpose of the use of these
terms, adolescent means an individual 12-20 years of age; a child means an
individual from birth up to 12 years of age.

"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS.

"Care coordination" means collaboration and sharing
of information among health care providers, who are involved with an
individual's health care, to improve the care.

"Certified prescreener" means an employee of the
local community services board or behavioral health authority, or its designee,
who is skilled in the assessment and treatment of mental illness and has
completed a certification program approved by the Department of Behavioral
Health and Developmental Services.

"Clinical experience" means providing direct
behavioral health services on a full-time basis or equivalent hours of
part-time work to children and adolescents who have diagnoses of mental illness
and includes supervised internships, supervised practicums, and supervised
field experience for the purpose of Medicaid reimbursement of (i) intensive
in-home services, (ii) day treatment for children and adolescents, (iii)
community-based residential services for children and adolescents who are
younger than 21 years of age (Level A), or (iv) therapeutic behavioral services
(Level B). Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be as
established by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"DBHDS" means the Department of Behavioral Health
and Developmental Services.

"DMAS" means the Department of Medical Assistance
Services and its contractor or contractors.

"EPSDT" means early and periodic screening,
diagnosis, and treatment.

"Human services field" means the same as the term is
defined by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"Individual service plan" or "ISP" means
the same as the term is defined in 12VAC30-50-226.

"LMHP-resident" or "LMHP-R" means the same
as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of Counseling.
For purposes of Medicaid reimbursement to their supervisors for services
provided by such residents, they shall use the title "Resident" in
connection with the applicable profession after their signatures to indicate
such status.

"LMHP-resident in psychology" or "LMHP-RP"
means the same as an individual in a residency, as that term is defined in
18VAC125-20-10, program for clinical psychologists. An LMHP-resident in
psychology shall be in continuous compliance with the regulatory requirements
for supervised experience as found in 18VAC125-20-65 and shall not perform the
functions of the LMHP-RP or be considered a "resident" until the
supervision for specific clinical duties at a specific site has been
preapproved in writing by the Virginia Board of Psychology. For purposes of
Medicaid reimbursement by supervisors for services provided by such residents,
they shall use the title "Resident in Psychology" after their
signatures to indicate such status.

"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" as defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be
considered a "supervisee" until the supervision for specific clinical
duties at a specific site is preapproved in writing by the Virginia Board of
Social Work. For purposes of Medicaid reimbursement to their supervisors for
services provided by supervisees, these persons shall use the title
"Supervisee in Social Work" after their signatures to indicate such
status.

"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized and member-specific progress notes are part of the
minimum documentation requirements and shall convey the individual's status,
staff interventions, and, as appropriate, the individual's progress, or lack of
progress, toward goals and objectives in the ISP. The progress notes shall also
include, at a minimum, the name of the service rendered, the date of the
service rendered, the signature and credentials of the person who rendered the
service, the setting in which the service was rendered, and the amount of time
or units/hours required to deliver the service. The content of each progress
note shall corroborate the time/units billed. Progress notes shall be
documented for each service that is billed.

"Psychoeducation" means (i) a specific form of
education aimed at helping individuals who have mental illness and their family
members or caregivers to access clear and concise information about mental
illness and (ii) a way of accessing and learning strategies to deal with mental
illness and its effects in order to design effective treatment plans and strategies.

"Psychoeducational activities" means systematic
interventions based on supportive and cognitive behavior therapy that
emphasizes an individual's and his family's needs and focuses on increasing the
individual's and family's knowledge about mental disorders, adjusting to mental
illness, communicating and facilitating problem solving and increasing coping
skills.

"Qualified mental health professional-child" or
"QMHP-C" means the same as the term is defined in 12VAC35-105-20.

"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-590.

"Qualified paraprofessional in mental health" or
"QPPMH" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-1370.

"Service-specific provider intake" means the
face-to-face interaction in which the provider obtains information from the
child or adolescent, and parent or other family member or members, as
appropriate, about the child's or adolescent's mental health status. It
includes documented history of the severity, intensity, and duration of mental
health care problems and issues and shall contain all of the following
elements: (i) the presenting issue/reason for referral, (ii) mental health
history/hospitalizations, (iii) previous interventions by providers and
timeframes and response to treatment, (iv) medical profile, (v) developmental
history including history of abuse, if appropriate, (vi) educational/vocational
status, (vii) current living situation and family history and relationships,
(viii) legal status, (ix) drug and alcohol profile, (x) resources and
strengths, (xi) mental status exam and profile, (xii) diagnosis, (xiii)
professional summary and clinical formulation, (xiv) recommended care and
treatment goals, and (xv) the dated signature of the LMHP, LMHP-supervisee,
LMHP-resident, or LMHP-RP.

"Services provided under arrangement" means the same
as defined in 12VAC30-130-850.

b. Intensive in-home services (IIH) to children and
adolescents under age 21 shall be time-limited interventions provided in the
individual's residence and when clinically necessary in community settings. All
interventions and the settings of the intervention shall be defined in the
Individual Service Plan. All IIH services shall be designed to specifically
improve family dynamics, provide modeling, and the clinically necessary
interventions that increase functional and therapeutic interpersonal relations
between family members in the home. IIH services are designed to promote
psychoeducational benefits in the home setting of an individual who is at risk
of being moved into an out-of-home placement or who is being transitioned to
home from an out-of-home placement due to a documented medical need of the
individual. These services provide crisis treatment; individual and family
counseling; communication skills (e.g., counseling to assist the individual and
his parents or guardians, as appropriate, to understand and practice
appropriate problem solving, anger management, and interpersonal interaction,
etc.); care coordination with other required services; and 24-hour emergency
response.

(1) These services shall be limited annually to 26 weeks.
Service authorization shall be required for Medicaid reimbursement prior to the
onset of services. Services rendered before the date of authorization shall not
be reimbursed.

(2) Service authorization shall be required for services to
continue beyond the initial 26 weeks.

(3) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(4) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

c. Therapeutic day treatment (TDT) shall be provided two or
more hours per day in order to provide therapeutic interventions. Day treatment
programs, limited annually to 780 units, provide evaluation; medication
education and management; opportunities to learn and use daily living skills
and to enhance social and interpersonal skills (e.g., problem solving, anger
management, community responsibility, increased impulse control, and
appropriate peer relations, etc.); and individual, group and family counseling.

(1) Service authorization shall be required for Medicaid
reimbursement.

(2) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(3) These services may be rendered only by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

d. Community-based services for children and adolescents under
21 years of age (Level A) pursuant to 42 CFR 440.031(d).

(1) Such services shall be a combination of therapeutic
services rendered in a residential setting. The residential services will
provide structure for daily activities, psychoeducation, therapeutic
supervision, care coordination, and psychiatric treatment to ensure the
attainment of therapeutic mental health goals as identified in the individual
service plan (plan of care). Individuals qualifying for this service must
demonstrate medical necessity for the service arising from a condition due to
mental, behavioral or emotional illness that results in significant functional
impairments in major life activities in the home, school, at work, or in the
community. The service must reasonably be expected to improve the child's
condition or prevent regression so that the services will no longer be needed.
The application of a national standardized set of medical necessity criteria in
use in the industry, such as McKesson InterQual® Criteria or an
equivalent standard authorized in advance by DMAS, shall be required for this
service.

(2) In addition to the residential services, the child must
receive, at least weekly, individual psychotherapy that is provided by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.

(3) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(4) Authorization shall be required for Medicaid
reimbursement. Services that were rendered before the date of service
authorization shall not be reimbursed.

(5) Room and board costs shall not be reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(6) These residential providers must be licensed by the
Department of Social Services, Department of Juvenile Justice, or Department of
Behavioral Health and Developmental Services under the Standards for Licensed
Children's Residential Facilities (22VAC40-151), Regulation Governing Juvenile
Group Homes and Halfway Houses (6VAC35-41), or Regulations for Children's
Residential Facilities (12VAC35-46).

(7) Daily progress notes shall document a minimum of seven
psychoeducational activities per week. Psychoeducational programming must
include, but is not limited to, development or maintenance of daily living
skills, anger management, social skills, family living skills, communication
skills, stress management, and any care coordination activities.

(8) The facility/group home must coordinate services with
other providers. Such care coordination shall be documented in the individual's
medical record. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.

(9) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
intakes and ISPs are set out in 12VAC30-60-61.

(10) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(1) Such services must be therapeutic services rendered in a
residential setting that provide structure for daily activities,
psychoeducation, therapeutic supervision, care coordination, and psychiatric
treatment to ensure the attainment of therapeutic mental health goals as
identified in the individual service plan (plan of care). Individuals
qualifying for this service must demonstrate medical necessity for the service
arising from a condition due to mental, behavioral or emotional illness that
results in significant functional impairments in major life activities in the
home, school, at work, or in the community. The service must reasonably be
expected to improve the child's condition or prevent regression so that the
services will no longer be needed. The application of a national standardized
set of medical necessity criteria in use in the industry, such as McKesson
InterQual® Criteria, or an equivalent standard authorized in advance
by DMAS shall be required for this service.

(2) Authorization is required for Medicaid reimbursement.
Services that are rendered before the date of service authorization shall not
be reimbursed.

(3) Room and board costs shall not be reimbursed. Facilities
that only provide independent living services are not reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(4) These residential providers must be licensed by the
Department of Behavioral Health and Developmental Services (DBHDS) under the
Regulations for Children's Residential Facilities (12VAC35-46).

(5) Daily progress notes shall document that a minimum of
seven psychoeducational activities per week occurs. Psychoeducational
programming must include, but is not limited to, development or maintenance of
daily living skills, anger management, social skills, family living skills,
communication skills, and stress management. This service may be provided in a
program setting or a community-based group home.

(6) The individual must receive, at least weekly, individual
psychotherapy and, at least weekly, group psychotherapy that is provided as
part of the program.

(7) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(8) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services that are based upon incomplete, missing, or outdated
service-specific provider intakes or ISPs shall be denied reimbursement.
Requirements for intakes and ISPs are set out in 12VAC30-60-61.

(9) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(10) The facility/group home shall coordinate necessary
services with other providers. Documentation of this care coordination shall be
maintained by the facility/group home in the individual's record. The
documentation shall include who was contacted, when the contact occurred, and
what information was transmitted.

6. Inpatient psychiatric services shall be covered for
individuals younger than age 21 for medically necessary stays in inpatient
psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2) for
the purpose of diagnosis and treatment of mental health and behavioral
disorders identified under EPSDT when such services are rendered by (i) a
psychiatric hospital or an inpatient psychiatric program in a hospital
accredited by the Joint Commission on Accreditation of Healthcare Organizations
or (ii) a psychiatric facility that is accredited by the Joint Commission on
Accreditation of Healthcare Organizations or the Commission on Accreditation of
Rehabilitation Facilities. Inpatient psychiatric hospital admissions at general
acute care hospitals and freestanding psychiatric hospitals shall also be
subject to the requirements of 12VAC30-50-100, 12VAC30-50-105, and
12VAC30-60-25. Inpatient psychiatric admissions to residential treatment
facilities shall also be subject to the requirements of Part XIV (12VAC30-130-850
et seq.) of 12VAC30-130.

a. The inpatient psychiatric services benefit for individuals
younger than 21 years of age shall include services defined at 42 CFR 440.160
that are provided under the direction of a physician pursuant to a certification
of medical necessity and plan of care developed by an interdisciplinary team of
professionals and shall involve active treatment designed to achieve the
child's discharge from inpatient status at the earliest possible time. The
inpatient psychiatric services benefit shall include services provided under
arrangement furnished by Medicaid enrolled providers other than the inpatient
psychiatric facility, as long as the inpatient psychiatric facility (i)
arranges for and oversees the provision of all services, (ii) maintains all
medical records of care furnished to the individual, and (iii) ensures that the
services are furnished under the direction of a physician. Services provided
under arrangement shall be documented by a written referral from the inpatient
psychiatric facility. For purposes of pharmacy services, a prescription ordered
by an employee or contractor of the facility who is licensed to prescribe drugs
shall be considered the referral.

b. Eligible services provided under arrangement with the inpatient
psychiatric facility shall vary by provider type as described in this
subsection. For purposes of this section, emergency services means the same as
is set out in 12VAC30-50-310 B.

c. Inpatient psychiatric services are reimbursable only when
the treatment program is fully in compliance with (i) 42 CFR Part 441 Subpart
D, specifically 42 CFR 441.151(a) and (b) and 441.152 through 441.156, and
(ii) the conditions of participation in 42 CFR Part 483 Subpart G. Each
admission must be preauthorized and the treatment must meet DMAS requirements for
clinical necessity.

d. Service limits may be exceeded based on medical necessity
for individuals eligible for EPSDT.

7. Hearing aids shall be reimbursed for individuals younger
than 21 years of age according to medical necessity when provided by practitioners
licensed to engage in the practice of fitting or dealing in hearing aids under
the Code of Virginia.

8. Behavioral therapy services shall be covered for
individuals under the age of 21 years.

a. Definitions. The following words and terms when used in
this subsection shall have the following meanings unless the context clearly
indicates otherwise:

"Behavioral therapy" means systematic
interventions provided by licensed practitioners acting within the scope of
practice defined under a Virginia Health Professions Regulatory Board and
covered as remedial care under 42 CFR 440.130(d) within the home to
individuals under 21 years of age. Behavioral therapy includes applied
behavioral analysis and is primarily provided in the family home. Family
counseling and training related to the implementation of the behavioral therapy
shall be included as part of the behavioral therapy service. Behavioral therapy
services shall be subject to clinical reviews and determined as medically
necessary. Behavioral therapy may be intermittently provided in community
settings when approved settings are deemed by DMAS or its contractor as
medically necessary treatment.

"Individual" means the child or adolescent under
the age of 21 who is receiving behavioral therapy services.

"Primary care provider" means a licensed medical
practitioner who provides preventive and primary health care and is responsible
for providing routine EPSDT screening and referral and coordination of other
medical services needed by the individual.

b. Behavioral therapy services shall be designed to enhance
communication skills and decrease maladaptive patterns of behavior, which if
left untreated, could lead to more complex problems and the need for a greater
or a more intensive level of care. The service goal shall be to ensure the
individual's family or caregiver is trained to effectively manage the
individual's behavior in the home using modification strategies. The services
shall be provided in accordance with the individual service plan and clinical assessment
summary.

c. Behavioral therapy services shall be covered when
recommended by the individual's primary care provider or other licensed
physician, licensed physician assistant, or licensed nurse practitioner and
determined by DMAS or its contractor to be medically necessary to correct or
ameliorate significant impairments in major life activities that have resulted
from either developmental, behavioral, or mental disabilities. Criteria for
medical necessity are set out in 12VAC30-60-61 H. Service-specific provider
intakes shall be required at the onset of these services in order to receive
authorization for reimbursement. Individual service plans (ISPs) shall be
required throughout the entire duration of services. The services shall be
provided in accordance with the individual service plan and clinical assessment
summary. These services shall be provided in settings that are natural or
normal for a child or adolescent without a disability, such as his home, unless
there is justification in the ISP, which has been authorized for reimbursement,
to include service settings that promote a generalization of behaviors across
different settings to maintain the targeted functioning outside of the
treatment setting in the patient's residence and the larger community within
which the individual resides. Covered behavioral therapy services shall
include:

2. School divisions may provide routine well-child screening
services under the State Plan. Diagnostic and treatment services that are
otherwise covered under early and periodic screening, diagnosis and treatment
services, shall not be covered for school divisions. School divisions to
receive reimbursement for the screenings shall be enrolled with DMAS as clinic
providers.

a. Children enrolled in managed care organizations shall
receive screenings from those organizations. School divisions shall not receive
reimbursement for screenings from DMAS for these children.

b. School-based services are listed in a recipient's
individualized education program (IEP) and covered under one or more of the
service categories described in § 1905(a) of the Social Security Act. These
services are necessary to correct or ameliorate defects of physical or mental
illnesses or conditions.

3. Service providersProviders shall be licensed
under the applicable state practice act or comparable licensing criteria by the
Virginia Department of Education, and shall meet applicable qualifications
under 42 CFR Part 440. Identification of defects, illnesses or conditions and
services necessary to correct or ameliorate them shall be performed by
practitioners qualified to make those determinations within their licensed
scope of practice, either as a member of the IEP team or by a qualified
practitioner outside the IEP team.

a. Service providersProviders shall be employed
by the school division or under contract to the school division.

b. Supervision of services by providers recognized in
subdivision 4 of this subsection shall occur as allowed under federal
regulations and consistent with Virginia law, regulations, and DMAS provider
manuals.

c. The services described in subdivision 4 of this subsection
shall be delivered by school providers, but may also be available in the
community from other providers.

d. Services in this subsection are subject to utilization
control as provided under 42 CFR Parts 455 and 456.

e. The IEP shall determine whether or not the services
described in subdivision 4 of this subsection are medically necessary and that
the treatment prescribed is in accordance with standards of medical practice.
Medical necessity is defined as services ordered by IEP providers. The IEP
providers are qualified Medicaid providers to make the medical necessity
determination in accordance with their scope of practice. The services must be
described as to the amount, duration and scope.

4. Covered services include:

a. Physical therapy, occupational therapy and services for
individuals with speech, hearing, and language disorders, performed by, or
under the direction of, providers who meet the qualifications set forth at 42
CFR 440.110. This coverage includes audiology services;

b. Skilled nursing services are covered under 42 CFR
440.60. These services are to be rendered in accordance to the licensing
standards and criteria of the Virginia Board of Nursing. Nursing services are
to be provided by licensed registered nurses or licensed practical nurses but
may be delegated by licensed registered nurses in accordance with the
regulations of the Virginia Board of Nursing, especially the section on
delegation of nursing tasks and procedures. The licensed practical nurse is
under the supervision of a registered nurse.

(1) The coverage of skilled nursing services shall be of a
level of complexity and sophistication (based on assessment, planning,
implementation and evaluation) that is consistent with skilled nursing services
when performed by a licensed registered nurse or a licensed practical nurse.
These skilled nursing services shall include, but not necessarily be limited to
dressing changes, maintaining patent airways, medication
administration/monitoring and urinary catheterizations.

(2) Skilled nursing services shall be directly and
specifically related to an active, written plan of care developed by a
registered nurse that is based on a written order from a physician, physician
assistant or nurse practitioner for skilled nursing services. This order shall
be recertified on an annual basis.

c. Psychiatric and psychological services performed by
licensed practitioners within the scope of practice are defined under state law
or regulations and covered as physicians' services under 42 CFR 440.50 or
medical or other remedial care under 42 CFR 440.60. These outpatient services
include individual medical psychotherapy, group medical psychotherapy coverage,
and family medical psychotherapy. Psychological and neuropsychological testing
are allowed when done for purposes other than educational diagnosis, school
admission, evaluation of an individual with intellectual disability prior to
admission to a nursing facility, or any placement issue. These services are
covered in the nonschool settings also. School providers who may render these
services when licensed by the state include psychiatrists, licensed clinical
psychologists, school psychologists, licensed clinical social workers,
professional counselors, psychiatric clinical nurse specialists, marriage and
family therapists, and school social workers.

d. Personal care services are covered under 42 CFR
440.167 and performed by persons qualified under this subsection. The personal
care assistant is supervised by a DMAS recognized school-based health
professional who is acting within the scope of licensure. This practitioner
develops a written plan for meeting the needs of the child, which is
implemented by the assistant. The assistant must have qualifications comparable
to those for other personal care aides recognized by the Virginia Department of
Medical Assistance Services. The assistant performs services such as assisting
with toileting, ambulation, and eating. The assistant may serve as an aide on a
specially adapted school vehicle that enables transportation to or from the
school or school contracted provider on days when the student is receiving a
Medicaid-covered service under the IEP. Children requiring an aide during
transportation on a specially adapted vehicle shall have this stated in the
IEP.

e. Medical evaluation services are covered as physicians'
services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR
440.60. Persons performing these services shall be licensed physicians,
physician assistants, or nurse practitioners. These practitioners shall
identify the nature or extent of a child's medical or other health related
condition.

f. Transportation is covered as allowed under 42 CFR
431.53 and described at State Plan Attachment 3.1-D (12VAC30-50-530).
Transportation shall be rendered only by school division personnel or
contractors. Transportation is covered for a child who requires transportation
on a specially adapted school vehicle that enables transportation to or from
the school or school contracted provider on days when the student is receiving
a Medicaid-covered service under the IEP. Transportation shall be listed in the
child's IEP. Children requiring an aide during transportation on a specially
adapted vehicle shall have this stated in the IEP.

g. Assessments are covered as necessary to assess or reassess
the need for medical services in a child's IEP and shall be performed by any of
the above licensed practitioners within the scope of practice. Assessments and
reassessments not tied to medical needs of the child shall not be covered.

5. DMAS will ensure through quality management review that
duplication of services will be monitored. School divisions have a
responsibility to ensure that if a child is receiving additional therapy
outside of the school, that there will be coordination of services to avoid
duplication of service.

D. Family planning services and supplies for individuals of
child-bearing age.

1. Service must be ordered or prescribed and directed or
performed within the scope of the license of a practitioner of the healing arts.

2. Family planning services shall be defined as those services
that delay or prevent pregnancy. Coverage of such services shall not include
services to treat infertility or services to promote fertility. Family planning
services shall not cover payment for abortion services and no funds shall be
used to perform, assist, encourage, or make direct referrals for abortions.

3. Family planning services as established by § 1905(a)(4)(C)
of the Social Security Act include annual family planning exams; cervical cancer
screening for women; sexually transmitted infection (STI) testing; lab services
for family planning and STI testing; family planning education, counseling, and
preconception health; sterilization procedures; nonemergency transportation to
a family planning service; and U.S. Food and Drug Administration approved
prescription and over-the-counter contraceptives, subject to limits in
12VAC30-50-210.

12VAC30-60-61. Services related to the Early and Periodic
Screening, Diagnosis and Treatment Program (EPSDT); community mental health
services for children; behavioral therapy services for children.

A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context indicates
otherwise:

"At risk" means one or more of the following: (i)
within the two weeks before the intake, the individual shall be screened by an
LMHP for escalating behaviors that have put either the individual or others at
immediate risk of physical injury; (ii) the parent/guardian is unable to manage
the individual's mental, behavioral, or emotional problems in the home and is
actively, within the past two to four weeks, seeking an out-of-home placement;
(iii) a representative of either a juvenile justice agency, a department of
social services (either the state agency or local agency), a community services
board/behavioral health authority, the Department of Education, or an LMHP, as
defined in 12VAC35-105-20, and who is neither an employee of nor consultant to
the intensive in-home (IIH) services or therapeutic day treatment (TDT)
provider, has recommended an out-of-home placement absent an immediate change
of behaviors and when unsuccessful mental health services are evident; (iv) the
individual has a history of unsuccessful services (either crisis intervention,
crisis stabilization, outpatient psychotherapy, outpatient substance abuse
services, or mental health support) within the past 30 days; (v) the treatment
team or family assessment planning team (FAPT) recommends IIH services or TDT
for an individual currently who is either: (a) transitioning out of residential
treatment facility Level C services, (b) transitioning out of a group home
Level A or B services, (c) transitioning out of acute psychiatric
hospitalization, or (d) transitioning between foster homes, mental health case
management, crisis intervention, crisis stabilization, outpatient
psychotherapy, or outpatient substance abuse services.

"Failed services" or "unsuccessful
services" means, as measured by ongoing behavioral, mental, or physical
distress, that the service or services did not treat or resolve the
individual's mental health or behavioral issues.

"Individual" means the Medicaid-eligible person
receiving these services and for the purpose of this section includes children
from birth up to 12 years of age or adolescents ages 12 through 20 years.

"Licensed assistant behavior analyst" means a
person who has met the licensing requirements of 18VAC85-150 and holds a valid
license issued by the Department of Health Professions.

"Licensed behavior analyst" means a person who
has met the licensing requirements of 18VAC85-150 and holds a valid license
issued by the Department of Health Professions.

"New service" means a community mental health
rehabilitation service for which the individual does not have a current service
authorization in effect as of July 17, 2011.

"Out-of-home placement" means placement in one or
more of the following: (i) either a Level A or Level B group home; (ii) regular
foster home if the individual is currently residing with his biological family
and, due to his behavior problems, is at risk of being placed in the custody of
the local department of social services; (iii) treatment foster care if the
individual is currently residing with his biological family or a regular foster
care family and, due to the individual's behavioral problems, is at risk of
removal to a higher level of care; (iv) Level C residential facility; (v)
emergency shelter for the individual only due either to his mental health or behavior
or both; (vi) psychiatric hospitalization; or (vii) juvenile justice system or
incarceration.

"Service-specific provider intake" means the
evaluation that is conducted according to the Department of Medical Assistance
Services (DMAS) intake definition set out in 12VAC30-50-130.

B. Utilization review requirements for all services in
this section.

1. The services described in this section shall be
rendered consistent with the definitions, service limits, and requirements
described in this section and in 12VAC30-50-130.

2. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

3. Individual service plans (ISPs) shall meet all of the
requirements set forth in 12VAC30-60-143 B 7.

C. IntensiveUtilization review of intensive
in-home (IIH) services for children and adolescents.

1. The service definition for intensive in-home (IIH) services
is contained in 12VAC30-50-130.

2. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from mental, behavioral or emotional
illness which results in significant functional impairments in major life
activities. Individuals must meet at least two of the following criteria on a
continuing or intermittent basis to be authorized for these services:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services or judicial system
are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

3. Prior to admission, an appropriate service-specific
provider intake, as defined in 12VAC30-50-130, shall be conducted by the
licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, or
LMHP-RP, documenting the individual's diagnosis and describing how service
needs can best be met through intervention provided typically but not solely in
the individual's residence. The service-specific provider intake shall describe
how the individual's clinical needs put the individual at risk of out-of-home
placement and shall be conducted face-to-face in the individual's residence.
Claims for services that are based upon service-specific provider intakes that
are incomplete, outdated (more than 12 months old), or missing shall not be
reimbursed.

4. An individual service plan (ISP) shall be fully completed,
signed, and dated by either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a
QMHP-C, or a QMHP-E and the individual and individual's parent/guardian within
30 days of initiation of services. The ISP shall meet all of the requirements
as defined in 12VAC30-50-226.

5. DMAS shall not reimburse for dates of services in which the
progress notes are not individualized and child-specific. Duplicated progress
notes shall not constitute the required child-specific individualized progress
notes. Each progress note shall demonstrate unique differences particular to
the individual's circumstances, treatment, and progress. Claim payments shall
be retracted for services that are supported by documentation that does not
demonstrate unique differences particular to the individual.

6. Services shall be directed toward the treatment of the
eligible individual and delivered primarily in the family's residence with the
individual present. As clinically indicated, the services may be rendered in
the community if there is documentation, on that date of service, of the
necessity of providing services in the community. The documentation shall
describe how the alternative community service location supports the identified
clinical needs of the individual and describe how it facilitates the
implementation of the ISP. For services provided outside of the home, there
shall be documentation reflecting therapeutic treatment as set forth in the ISP
provided for that date of service in the appropriately signed and dated
progress notes.

7. These services shall be provided when the clinical needs of
the individual put him at risk for out-of-home placement, as these terms are
defined in this section:

a. When services that are far more intensive than outpatient
clinic care are required to stabilize the individual in the family situation,
or

b. When the individual's residence as the setting for services
is more likely to be successful than a clinic.

The service-specific provider intake shall describe how the
individual meets either subdivision a or b of this subdivision.

8. Services shall not be provided if the individual is no
longer a resident of the home.

9. Services shall also be used to facilitate the transition to
home from an out-of-home placement when services more intensive than outpatient
clinic care are required for the transition to be successful. The individual
and responsible parent/guardian shall be available and in agreement to
participate in the transition.

10. At least one parent/legal guardian or responsible adult
with whom the individual is living must be willing to participate in the intensive
in-home services with the goal of keeping the individual with the family. In
the instance of this service, a responsible adult shall be an adult who lives
in the same household with the child and is responsible for engaging in therapy
and service-related activities to benefit the individual.

11. The enrolled service provider shall be licensed by
the Department of Behavioral Health and Developmental Services (DBHDS) as a
provider of intensive in-home services. The provider shall also have a provider
enrollment agreement with DMAS or its contractor in effect prior to the
delivery of this service that indicates that the provider will offer intensive
in-home services.

12. Services must only be provided by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E. Reimbursement shall
not be provided for such services when they have been rendered by a QPPMH as
defined in 12VAC35-105-20.

13. The billing unit for intensive in-home service shall be
one hour. Although the pattern of service delivery may vary, intensive in-home
services is an intensive service provided to individuals for whom there is an
ISP in effect which demonstrates the need for a minimum of three hours a week
of intensive in-home service, and includes a plan for service provision of a
minimum of three hours of service delivery per individual/family per week in
the initial phase of treatment. It is expected that the pattern of service
provision may show more intensive services and more frequent contact with the
individual and family initially with a lessening or tapering off of intensity
toward the latter weeks of service. Service plans shall incorporate an
individualized discharge plan that describes transition from intensive in-home
to less intensive or nonhome based services.

14. The ISP, as defined in 12VAC30-50-226, shall be updated as
the individual's needs and progress changes and signed by either the parent or
legal guardian and the individual. Documentation shall be provided if the
individual, who is a minor child, is unable or unwilling to sign the ISP. If
there is a lapse in services that is greater than 31 consecutive calendar days
without any communications from family members/legal guardian or the individual
with the service provider, the provider shall discharge the individual.
If the individual continues to need services, then a new intake/admission shall
be documented and a new service authorization shall be required.

15. The provider shall ensure that the maximum
staff-to-caseload ratio fully meets the needs of the individual.

16. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the service
provider shall contact the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers who are using the same
electronic health record for the individual shall meet requirements for
delivery of the notification, monthly updates, and discharge summary upon entry
of the information in the electronic health records.

17. Emergency assistance shall be available 24 hours per day,
seven days a week.

19. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or guardian, shall
inform him of the individual's receipt of IIH services. The documentation shall
include who was contacted, when the contact occurred, and what information was
transmitted.

D. TherapeuticUtilization review of therapeutic
day treatment for children and adolescents.

1. The service definition for therapeutic day treatment (TDT)
for children and adolescents is contained in 12VAC30-50-130.

2. Therapeutic day treatment is appropriate for children and
adolescents who meet one of the following:

a. Children and adolescents who require year-round treatment
in order to sustain behavior or emotional gains.

b. Children and adolescents whose behavior and emotional
problems are so severe they cannot be handled in self-contained or resource
emotionally disturbed (ED) classrooms without:

(1) This programming during the school day; or

(2) This programming to supplement the school day or school
year.

c. Children and adolescents who would otherwise be placed on
homebound instruction because of severe emotional/behavior problems that
interfere with learning.

d. Children and adolescents who (i) have deficits in social
skills, peer relations or dealing with authority; (ii) are hyperactive; (iii)
have poor impulse control; (iv) are extremely depressed or marginally connected
with reality.

e. Children in preschool enrichment and early intervention
programs when the children's emotional/behavioral problems are so severe that
they cannot function in these programs without additional services.

3. The service-specific provider intake shall document the
individual's behavior and describe how the individual meets these specific
service criteria in subdivision 2 of this subsection.

4. Prior to admission to this service, a service-specific
provider intake shall be conducted by the LMHP as defined in 12VAC35-105-20.

5. An ISP shall be fully completed, signed, and dated by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or QMHP-E and by the
individual or the parent/guardian within 30 days of initiation of services and
shall meet all requirements of an ISP as defined in 12VAC30-50-226. Individual
progress notes shall be required for each contact with the individual and shall
meet all of the requirements as defined in 12VAC30-50-130.

6. Such services shall not duplicate those services provided
by the school.

7. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral or emotional illness which results in significant functional
impairments in major life activities. Individuals shall meet at least two of
the following criteria on a continuing or intermittent basis:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services, or judicial
system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

8. The enrolled provider of therapeutic day treatment for
child and adolescent services shall be licensed by DBHDS to provide day support
services. The provider shall also have a provider enrollment agreement in
effect with DMAS prior to the delivery of this service that indicates that the
provider offers therapeutic day treatment services for children and
adolescents.

10. The minimum staff-to-individual ratio as defined by DBHDS
licensing requirements shall ensure that adequate staff is available to meet
the needs of the individual identified on the ISP.

11. The program shall operate a minimum of two hours per day
and may offer flexible program hours (i.e., before or after school or during
the summer). One unit of service shall be defined as a minimum of two hours but
less than three hours in a given day. Two units of service shall be defined as
a minimum of three but less than five hours in a given day. Three units of
service shall be defined as five or more hours of service in a given day.

12. Time required for academic instruction when no treatment
activity is going on shall not be included in the billing unit.

13. Services shall be provided following a service-specific
provider intake that is conducted by an LMHP, LMHP-supervisee, LMHP-resident,
or LMHP-RP. An LMHP, LMHP-supervisee, or LMHP-resident shall make and document
the diagnosis. The service-specific provider intake shall include the elements
as defined in 12VAC30-50-130.

14. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider
shall collaborate with the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers using the same electronic
health record for the individual shall meet requirements for delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.

15. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the child's receipt of community mental health
rehabilitative services. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted. The
parent/legal guardian shall be required to give written consent that this
provider has permission to inform the primary care provider of the child's or
adolescent's receipt of community mental health rehabilitative services.

16. Providers shall comply with DMAS marketing requirements as
set out in 12VAC30-130-2000. Providers that DMAS determines have violated these
marketing requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.

17. If there is a lapse in services greater than 31
consecutive calendar days, the provider shall discharge the individual. If the
individual continues to need services, a new intake/admission documentation
shall be prepared and a new service authorization shall be required.

E. Community-basedUtilization review of
community-based services for children and adolescents under 21 years of age
(Level A).

1. The staff ratio must be at least 1 to 6 during the day and
at least 1 to 10 between 11 p.m. and 7 a.m. The program director supervising
the program/group home must be, at minimum, a QMHP-C or QMHP-E (as defined in
12VAC35-105-20). The program director must be employed full time.

2. In order for Medicaid reimbursement to be approved, at
least 50% of the provider's direct care staff at the group home must meet DBHDS
paraprofessional staff criteria, defined in 12VAC35-105-20.

3. Authorization is required for Medicaid reimbursement. All
community-based services for children and adolescents under 21 (Level A)
require authorization prior to reimbursement for these services. Reimbursement
shall not be made for this service when other less intensive services may
achieve stabilization.

4. Services must be provided in accordance with an individual
service plan (ISP), which must be fully completed within 30 days of
authorization for Medicaid reimbursement.

5. Prior to admission, a service-specific provider intake
shall be conducted according to DMAS specifications described in
12VAC30-50-130.

6. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

7. If an individual receiving community-based services for
children and adolescents under 21 (Level A) is also receiving case management
services, the provider shall collaborate with the case manager by notifying the
case manager of the provision of Level A services and shall send monthly
updates on the individual's progress. When the individual is discharged from
Level A services, a discharge summary shall be sent to the case manager within
30 days of the service discontinuation date. Service providersProviders
and case managers who are using the same electronic health record for the
individual shall meet requirements for the delivery of the notification,
monthly updates, and discharge summary upon entry of this documentation into
the electronic health record.

F. TherapeuticUtilization review of therapeutic
behavioral services for children and adolescents under 21 years of age (Level
B).

1. The staff ratio must be at least 1 to 4 during the day and
at least 1 to 8 between 11 p.m. and 7 a.m. The clinical director must be a
licensed mental health professional. The caseload of the clinical director must
not exceed 16 individuals including all sites for which the same clinical
director is responsible.

2. The program director must be full time and be a QMHP-C or
QMHP-E with a bachelor's degree and at least one year's clinical experience.

3. For Medicaid reimbursement to be approved, at least 50% of
the provider's direct care staff at the group home shall meet DBHDS
paraprofessional staff criteria, as defined in 12VAC35-105-20. The program/group
home must coordinate services with other providers.

4. All therapeutic behavioral services (Level B) shall be
authorized prior to reimbursement for these services. Services rendered without
such prior authorization shall not be covered.

5. Services must be provided in accordance with an ISP, which
shall be fully completed within 30 days of authorization for Medicaid
reimbursement.

6. Prior to admission, a service-specific provider intake
shall be performed using all elements specified by DMAS in 12VAC30-50-130.

7. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

8. If an individual receiving therapeutic behavioral services
for children and adolescents under 21 (Level B) is also receiving case
management services, the therapeutic behavioral services provider must
collaborate with the care coordinator/case manager by notifying him of the
provision of Level B services and the Level B services provider shall send
monthly updates on the individual's treatment status. When the individual is
discharged from Level B services, a discharge summary shall be sent to the care
coordinator/case manager within 30 days of the discontinuation date.

9. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the individual's receipt of these Level B
services. The documentation shall include who was contacted, when the contact
occurred, and what information was transmitted. If these individuals are
children or adolescents, then the parent/legal guardian shall be required to
give written consent that this provider has permission to inform the primary
care provider of the individual's receipt of community mental health
rehabilitative services.

G. Utilization review. Utilization reviews for
community-based services for children and adolescents under 21 years of age
(Level A) and therapeutic behavioral services for children and adolescents
under 21 years of age (Level B) shall include determinations whether providers
meet all DMAS requirements, including compliance with DMAS marketing
requirements. Providers that DMAS determines have violated the DMAS marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000(E).

H. Utilization review of behavioral therapy services for
children.

1. In order for Medicaid to cover behavioral therapy
services, the provider shall be enrolled with DMAS or its contractor as a
Medicaid provider. The provider enrollment agreement shall be in effect prior
to the delivery of services for Medicaid reimbursement.

2. Behavioral therapy services shall be covered for
individuals younger than 21 years of age when recommended by the individual's primary
care provider, licensed physician, licensed physician assistant, or licensed
nurse practitioner and determined by DMAS or its contractor to be medically
necessary to correct or ameliorate significant impairments in major life
activities that have resulted from either developmental, behavioral, or mental
disabilities.

3. Behavioral therapy services require service
authorization. Services shall be authorized only when eligibility and medical
necessity criteria are met.

4. Prior to treatment, an appropriate service-specific
provider intake shall be conducted, documented, signed, and dated by a licensed
behavior analyst (LBA), licensed assistant behavior analyst (LABA), or LMHP,
LMHP-R, LMHP-RP, or LMHP-S, acting within the scope of his practice, documenting
the individual's diagnosis (including a description of the behavior or
behaviors targeted for treatment with their frequency, duration, and intensity)
and describing how service needs can best be met through behavioral therapy.
The service-specific provider intake shall be conducted face-to-face in the
individual's residence with the individual and parent or guardian. A new
service-specific provider intake shall be conducted and documented every three
months, or more often if needed, to observe the individual and family
interaction, review clinical data, and revise the ISP as needed.

5. The ISP shall be developed upon admission to the service
and reviewed within 30 days of admission to the service to ensure that all
treatment goals are reflective of the individual's clinical needs and shall
describe each treatment goal, targeted behavior, one or more measurable
objectives for each targeted behavior, the behavioral modification strategy to
be used to manage each targeted behavior, the plan for parent or caregiver
training, care coordination, and the measurement and data collection methods to
be used for each targeted behavior in the ISP. The ISP shall be fully
completed, signed, and dated by an LBA, LABA, LMHP, LMHP-R, LMHP-RP, or LMHP-S
and the individual and individual's parent or guardian. The ISP shall be
reviewed every three months (at the same time the service-specific provider
intake is conducted and documented) and updated as the individual progresses
and his needs change, but at least annually, and shall be signed by either the
parent or legal guardian and the individual. Documentation shall be provided if
the individual, who is a minor child, is unable or unwilling to sign the ISP.

6. Reimbursement for the initial service-specific provider
intake and the initial ISP shall be limited to five hours without service
authorization. If additional time is needed to complete these documents,
service authorization shall be required.

7. Clinical supervision shall be required for Medicaid
reimbursement of behavioral therapy services that are rendered by an LABA,
LMHP-R, LMHP-RP, or LMHP-S or unlicensed staff consistent with the scope of
practice as described by the applicable Virginia Department of Health
Professions regulatory board. Clinical supervision shall occur at least weekly
and, as documented in the individual's medical record, shall include a review
of progress notes and data and dialogue with supervised staff about the
individual’s progress and the effectiveness of the ISP.

8. The following shall not be covered under this service:

a. Screening to identify physical, mental, or developmental
conditions that may require evaluation or treatment. Screening is covered as an
EPSDT service provided by the primary care provider and is not covered as a
behavioral therapy service under this section.

b. Services other than the initial service-specific
provider intake that are provided but are not based upon the individual's ISP
or linked to a service in the ISP. Time not actively involved in providing
services directed by the ISP shall not be reimbursed.

c. Services that are based upon an incomplete, missing, or
outdated service-specific provider intake or ISP.

d. Sessions that are conducted for family support,
education, recreational, or custodial purposes, including respite or child
care.

e. Services that are provided by a provider but are
rendered primarily by a relative or guardian who is legally responsible for the
individual's care.

f. Services that are provided in a clinic or provider's
office without documented justification for the location in the ISP.

g. Services that are provided in the absence of the
individual and a parent or other authorized caregiver identified in the ISP
with the exception of treatment review processes described in 12VAC30-60-61 H
11 e, care coordination, and clinical supervision.

h. Services provided by a local education agency.

i. Provider travel time.

9. Behavioral therapy services shall not be reimbursed
concurrently with community mental health services described in 12VAC30-50-130
B 5 or 12VAC30-50-226, or behavioral, psychological, or psychiatric therapeutic
consultation described in 12VAC30-120-756, 12VAC30-120-1000, or
12VAC30-135-320.

10. If the individual is receiving targeted case management
services under the Medicaid state plan (defined in 12VAC30-50-410 through
12VAC30-50-491, the provider shall notify the case manager of the provision of
behavioral therapy services unless the parent or guardian requests that the
information not be released. In addition, the provider shall send monthly
updates to the case manager on the individual's status pursuant to a valid
release of information. A discharge summary shall be sent to the case manager
within 30 days of the service discontinuation date. A refusal of the parent or
guardian to release information shall be documented in the medical record for
the date the request was discussed.

11. Other standards to ensure quality of services:

a. Services shall be delivered only by an LBA, LABA, LMHP,
LMHP-R, LMHP-RP, LMHP-S, or clinically supervised unlicensed staff consistent
with the scope of practice as described by the applicable Virginia Department
of Health Professions regulatory board.

b. Individual-specific services shall be directed toward
the treatment of the eligible individual and delivered in the family's
residence unless an alternative location is justified and documented in the
ISP.

c. Individual-specific progress notes shall be created
contemporaneously with the service activities and shall document the name and
Medicaid number of each individual; the provider's name, signature, and date;
and time of service. Documentation shall include activities provided, length of
services provided, the individual's reaction to that day's activity, and
documentation of the individual's and the parent or caregiver's progress toward
achieving each behavioral objective through analysis and reporting of
quantifiable behavioral data. Documentation shall be prepared to clearly
demonstrate efficacy using baseline and service-related data that shows
clinical progress and generalization for the child and family members toward
the therapy goals as defined in the service plan.

d. Documentation of all billed services shall include the
amount of time or billable units spent to deliver the service and shall be
signed and dated on the date of the service by the practitioner rendering the
service.

e. Billable time is permitted for the LBA, LABA, LMHP,
LMHP-R, LMHP-RP, or LMHP-S to better define behaviors and develop documentation
strategies to measure treatment performance and the efficacy of the ISP
objectives, provided that these activities are documented in a progress note as
described in subdivision 11 c of this subsection.

12. Failure to comply with any of the requirements in
12VAC30-50-130 or in this section shall result in retraction.

A. Payment for behavioral therapy services for individuals
younger than 21 years of age shall be the lower of the state agency fee
schedule or actual charge (charge to the general public). All private and
governmental fee-for-service providers shall be reimbursed according to the
same methodology. The agency's rates were set as of October 1, 2011, and are
effective for services on or after that date until rates are revised. Rates are
published on the agency's website at www.dmas.virginia.gov.

B. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

12VAC30-120-380. MCO responsibilities.

A. The MCO shall provide, at a minimum, all medically
necessary covered services provided under the State Plan for Medical Assistance
and further defined by written DMAS regulations, policies and instructions,
except as otherwise modified or excluded in this part.

1. Nonemergency services provided by hospital emergency
departments shall be covered by MCOs in accordance with rates negotiated
between the MCOs and the hospital emergency departments.

2. Services that shall be provided outside the MCO network
shall include, but are not limited to, those services identified and
defined by the contract between DMAS and the MCO. Services reimbursed by DMAS
include (i) dental and orthodontic services for children up to age 21 years;
(ii) for all others, dental services (as described in 12VAC30-50-190), (iii)
school health services, (iv) community mental health services
(12VAC30-50-130 and 12VAC30-50-226); (v) early intervention services
provided pursuant to Part C of the Individuals with Disabilities Education Act
(IDEA) of 2004 (as defined in 12VAC30-50-131 and 12VAC30-50-415), and);
(vi) long-term care services provided under the § 1915(c) home-based and
community-based waivers including related transportation to such authorized
waiver services; and (vii) behavioral therapy services as defined in
12VAC30-50-130.

3. The MCOs shall pay for emergency services and family
planning services and supplies whether such services are provided inside or
outside the MCO network.

B. EPSDT services shall be covered by the MCO and defined by
the contract between DMAS and the MCO. The MCO shall have the authority to
determine the provider of service for EPSDT screenings.

C. The MCOs shall report data to DMAS under the contract
requirements, which may include data reports, report cards for members, and ad
hoc quality studies performed by the MCO or third parties.

D. Documentation requirements.

1. The MCO shall maintain records as required by federal and
state law and regulation and by DMAS policy. The MCO shall furnish such
required information to DMAS, the Attorney General of Virginia or his
authorized representatives, or the State Medicaid Fraud Control Unit on request
and in the form requested.

2. Each MCO shall have written policies regarding member
rights and shall comply with any applicable federal and state laws that pertain
to member rights and shall ensure that its staff and affiliated providers take
those rights into account when furnishing services to members in accordance
with 42 CFR 438.100.

3. Providers shall be required to refund payments if they
fail to maintain adequate documentation to support billed activities.

E. The MCO shall ensure that the health care provided to its
members meets all applicable federal and state mandates, community standards
for quality, and standards developed pursuant to the DMAS managed care quality
program.

F. The MCOs shall promptly provide or arrange for the
provision of all required services as specified in the contract between the
Commonwealth and the MCO. Medical evaluations shall be available within 48
hours for urgent care and within 30 calendar days for routine care. On-call
clinicians shall be available 24 hours per day, seven days per week.

G. The MCOs shall meet standards specified by DMAS for
sufficiency of provider networks as specified in the contract between the
Commonwealth and the MCO.

H. Each MCO and its subcontractors shall have in place, and
follow, written policies and procedures for processing requests for initial and
continuing authorizations of service. Each MCO and its subcontractors shall
ensure that any decision to deny a service authorization request or to
authorize a service in an amount, duration, or scope that is less than
requested, be made by a health care professional who has appropriate clinical
expertise in treating the member's condition or disease. Each MCO and its
subcontractors shall have in effect mechanisms to ensure consistent application
of review criteria for authorization decisions and shall consult with the
requesting provider when appropriate.

I. In accordance with 42 CFR 447.50 through 42 CFR
447.60, MCOs shall not impose any cost sharing obligations on members except as
set forth in 12VAC30-20-150 and 12VAC30-20-160.

J. An MCO may not prohibit, or otherwise restrict, a health
care professional acting within the lawful scope of practice, from advising or
advocating on behalf of a member who is his patient in accordance with 42 CFR
438.102.

K. An MCO that would otherwise be required to reimburse for
or provide coverage of a counseling or referral service is not required to do
so if the MCO objects to the service on moral or religious grounds and
furnishes information about the service it does not cover in accordance with 42
CFR 438.102.

Basis: Section 32.1-325 of the Code of Virginia grants
to the Board of Medical Assistance Services the authority to administer and
amend the Plan for Medical Assistance and to make, adopt, promulgate, and
enforce regulations to implement the state plan, and § 32.1-324 of the Code of
Virginia authorizes the Director of the Department of Medical Assistance
Services (DMAS) to administer and amend the Plan for Medical Assistance
according to the board's requirements. The Medicaid authority as established by
§ 1902(a) of the Social Security Act (42 USC § 1396a) provides
governing authority for payments for services.

Section 1905 of the Social Security Act requires state Medicaid
programs to provide early and periodic screening, diagnosis, and treatment
(EPSDT) services for individuals who are eligible under the plan and are
younger than the age of 21 years, to include "Such other necessary health
care, diagnostic services, treatment, and other measures described in § 1905(a)
to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services, whether or not such services
are covered under the State plan." If an individual is determined through
an EPSDT screening to need a medical service that is not otherwise covered in
Virginia's State Plan, then this provision in federal law requires the
Commonwealth to cover that service. Behavioral therapy services are an EPSDT
service.

Purpose: The proposed regulatory action is intended to
promote an improved quality of Medicaid-covered behavioral therapy services
provided to children and adolescents. The proposed regulation will
differentiate Medicaid's coverage of behavioral therapy and applied behavior
analysis services from coverage of community mental health and other
developmental services. This regulatory action is essential to protect the
health, safety, and welfare of these affected individuals and to ensure the
quality of services rendered to children and adolescents who demonstrate the
medical need for EPSDT behavioral therapy services. Regulations are needed to
establish clear criteria for Medicaid payment of these services. Regulatory
action is needed to ensure that Medicaid individuals and their families and
service providers are well informed about service specifications prior to
receiving or providing these services. These services will allow children
receiving services to improve interactions with their schools, families,
communities, future employers, and jobs and thus benefit a broad range of
citizens. These regulations are not expected to negatively affect the health,
safety, or welfare of citizens of the Commonwealth.

Substance: Currently, Medicaid payment for behavioral
therapy services is being authorized on an individual case basis under the
authority provided by the basic EPSDT definition found in 12VAC30-50-130 B. The
absence of consistently applied definitions, service requirements, required
provider qualifications, and quality assurance standards might result in
arbitrary decisions that cannot be sustained in an appeal. With increasing
numbers of children being diagnosed with autism and autism spectrum disorders
in need of such services, the individual-case-basis method of covering these
services is no longer satisfactory or appropriate.

DMAS proposes to initiate uniform coverage of behavioral
therapy services for individuals under the age of 21 years who meet the medical
necessity criteria. Trained professionals rendering early intensive treatment,
including applied behavior analysis techniques, has been shown to be effective
in ameliorating impairments in major life functions arising from autism
spectrum disorders and other diagnosed conditions. Coverage of EPSDT behavioral
therapy services will not cause more individuals to be eligible for this
service but will ensure appropriate treatment of eligible children who are
already in the care delivery system as well as those initiating behavioral
therapy services.

Prior to treatment, an appropriate health care practitioner
conducts an intake documenting the child's medical and psychiatric diagnosis
and describing how service needs can best be met through behavioral therapy
interventions. The assessment includes a description of the behavior or
behaviors targeted for treatment, including data on the frequency, duration, and
intensity of the behavior or behaviors. An individualized service plan (ISP) is
developed based on the assessment. The ISP describes each targeted behavior,
the behavioral modification strategy to be used to manage each targeted
behavior, and the measurement and data collection methods to be used for each
targeted behavior in the plan.

Behavioral analysis treatment strategies are systematic
interventions that are primarily provided in the family home. Family training
and counseling related to the implementation of the behavioral therapy shall be
included as part of the behavioral therapy service. Behavioral therapy may be
intermittently provided in community settings when approved settings are deemed
by DMAS or its contractor as medically necessary treatment. These services are
designed to enhance communication skills and decrease maladaptive patterns of
behavior that, if left untreated, could lead to more complex problems and the
need for a greater or a more restrictive level of care, such as institutionalization.
Successful implementation of behavioral therapy services requires the
participation of a parent or guardian.

The service goal is to ensure that the member's family is
trained to successfully manage clinically designed behavioral modification
strategies in the home setting. The family involvement in therapy is meant to
increase the child's adaptive functioning by training the family in effective
methods of behavioral modification strategies. Family members do not have to be
present during all hours of therapy. Family members must be present and
participate with their treatment plan objectives in an effective manner as
documented by the clinical supervisor.

EPSDT behavioral therapy services are intended to improve the
functional behaviors of the member by integrating multidisciplinary clinical
and medical services with the behavioral therapy protocol to increase the
member's adaptive functioning and communicative abilities. Treatment results
must be documented to indicate a generalization of behaviors across different
settings to maintain the targeted functioning outside of the treatment setting
in the patient's residence and the larger community within which the individual
resides.

Behavioral therapy services are currently excluded from
Medicaid managed care contracts and reimbursed by the behavioral health
services administrator (currently, Magellan) on a fee-for-service basis.
Technical corrections are made to the catchlines of several existing services
in 12VAC30-60-61 to create consistency in regulatory text and improve
readability.

Issues: The proposed regulation is advantageous to
individuals and their families by ensuring that Medicaid funded behavioral
therapy services are provided by licensed practitioners with the education,
experience, and clinical training necessary to effectively correct or
ameliorate problematic behaviors through the use of evidence based behavior
modification principles. Regulatory action will ensure that individuals, their
families, and service providers are well informed about Medicaid service
requirements prior to receiving or providing these services, thereby avoiding
DMAS recovery of provider payments made for inappropriate or inadequate
services. This regulatory action will also support the efforts of DMAS and its
contractors to provide effective care coordination and administrative oversight
of service delivery by clarifying provider requirements and service delivery
requirements in the Virginia Administrative Code. The primary advantage to the
Commonwealth, in the setting of these criteria and standards, will be the
statewide uniform application of policies that should result in fewer costly
provider appeals and reduced risks for fraud, waste, and abuse. There are no
disadvantages to the Commonwealth for this action.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The proposed
regulation establishes in the Virginia Administrative Code uniform and specific
standards for diagnosis and provision of behavioral therapy services under
Medicaid for young people from birth through the age of 21.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. The proposed regulation establishes
in the Virginia Administrative Code Medicaid coverage for behavioral therapy
services for young people from birth through the age of 21 under the authority
of the Early and Periodic Screening, Diagnosis and Treatment program. To be
covered for this service, children and adolescents must have autism or autism
spectrum disorders, or other similar developmental delays as demonstrated by
their lack of communication skills or lack of interaction with their
environments.

Prior to 2012 these services were already covered by Medicaid,
but there were no uniform standards. The coverage decisions were made on a
case-by-case basis. In 2012, the Department of Medical Assistance Services
(DMAS) adopted a service manual setting out uniform rules for coverage and
provision of behavioral therapy services (e.g., rules for provider enrollment,
eligibility criteria, limitations, service authorization requirements, etc.).
In December 2013, DMAS contracted Magellan Health to administer the provision
of behavioral therapy services. Selection of a behavioral services
administrator to run the program marked the beginning of a significant increase
in provision of these services. In fiscal year 2013, 524 individuals received
these services at a cost of approximately $12.2 million. In calendar year 2014,
$28.2 million was spent on services provided to 1,831 individuals. In calendar
year 2015, the expenditures and recipients increased to $41.6 million and
2,313, respectively. In calendar year 2016, expenditures stood at $60.6 million
and the number of recipients was 2,996.

While the provision of behavioral therapy services has grown
significantly in the recent past, the impact of the proposed regulation on
utilization is expected to be neutral. These services have been provided
according to the uniform standards set out in the service manual since 2012.
Consistent with the service manual, this action specifies in the regulation the
behavioral service requirements, medical necessity criteria, provider clinical
assessment and intake procedures, service planning and progress measurement
requirements, care coordination, clinical supervision, and other standards.

The main effect of the proposed changes is establishing clear
criteria for Medicaid payment of these services in the Virginia Administrative
Code and consequently providing legal basis for the programs administration.
Having clear criteria in regulations is also expected to help protect the
health, safety, and welfare of the affected children by improving the
uniformity of service quality across providers.

Businesses and Entities Affected. As of August 2016, 348
behavioral therapy providers were credentialed with Magellan (only 89 of which
actively provided services in 2016) and there were 488 licensed behavioral
analysts and 103 licensed assistant behavioral analysts in the Commonwealth. In
2016, 2,996 individuals received these services.

Projected Impact on Employment. No significant impact on
employment is expected.

Effects on the Use and Value of Private Property. No
significant impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate
development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The Department of Medical Assistance
Services estimates that 90% of the current providers are small businesses. The
proposed amendments are not anticipated to create significant costs or other
effects on small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
amendments are not anticipated to have an adverse impact on small businesses.

Adverse Impacts:

Businesses. DMAS estimates that 10% of the current providers
are non-small businesses. The proposed amendments are not anticipated to create
significant costs or other effects on non-small businesses.

Localities. The proposed amendments will not adversely affect
localities.

Other Entities. The proposed amendments will not adversely
affect other entities.

Agency's Response to Economic Impact Analysis: The
agency has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and raises no issues with this analysis.

Summary:

The proposed amendments establish Medicaid coverage for
behavioral therapy services for children under the authority of the Early and
Periodic Screening, Diagnosis and Treatment (EPSDT) program. EPSDT is a
mandatory Medicaid-covered service that offers preventive, diagnostic, and treatment
health care services to young people from birth through the age of 21 years. To
be covered for this service, a child must have a psychiatric diagnosis relevant
to the need for behavioral therapy services, including autism, autism spectrum
disorders, or other similar developmental delays and must meet the medical
necessity criteria. The proposed regulations define the behavioral therapy
service requirements, medical necessity criteria, provider clinical assessment
and intake procedures, service planning and progress measurement requirements,
care coordination, clinical supervision, and other standards to assure quality.
The behavioral therapy service will be reimbursed by DMAS outside of the
Medallion 3 managed care contracts.

12VAC30-50-130. Nursing facility services, EPSDT, including
school health services and family planning.

A. Nursing facility services (other than services in an
institution for mental diseases) for individuals 21 years of age or older.

Service must be ordered or prescribed and directed or
performed within the scope of a license of the practitioner of the healing
arts.

B. Early and periodic screening and diagnosis of individuals
under 21 years of age, and treatment of conditions found.

1. Payment of medical assistance services shall be made on
behalf of individuals under 21 years of age, who are Medicaid eligible, for
medically necessary stays in acute care facilities, and the accompanying
attendant physician care, in excess of 21 days per admission when such services
are rendered for the purpose of diagnosis and treatment of health conditions
identified through a physical examination.

2. Routine physicals and immunizations (except as provided
through EPSDT) are not covered except that well-child examinations in a private
physician's office are covered for foster children of the local social services
departments on specific referral from those departments.

3. Orthoptics services shall only be reimbursed if medically
necessary to correct a visual defect identified by an EPSDT examination or
evaluation. The department shall place appropriate utilization controls upon
this service.

4. Consistent with the Omnibus Budget Reconciliation Act of
1989 § 6403, early and periodic screening, diagnostic, and treatment services
means the following services: screening services, vision services, dental
services, hearing services, and such other necessary health care, diagnostic
services, treatment, and other measures described in Social Security Act §
1905(a) to correct or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services and which are medically
necessary, whether or not such services are covered under the State Plan and
notwithstanding the limitations, applicable to recipients ages 21 and over,
provided for by § 1905(a) of the Social Security Act.

5. Community mental health services. These services in order
to be covered (i) shall meet medical necessity criteria based upon diagnoses
made by LMHPs who are practicing within the scope of their licenses and (ii)
are reflected in provider records and on providers' claims for services by
recognized diagnosis codes that support and are consistent with the requested
professional services.

a. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context clearly
indicates otherwise:

"Adolescent or child" means the individual receiving
the services described in this section. For the purpose of the use of these
terms, adolescent means an individual 12-20 years of age; a child means an
individual from birth up to 12 years of age.

"Behavioral health services administrator" or
"BHSA" means an entity that manages or directs a behavioral health
benefits program under contract with DMAS.

"Care coordination" means collaboration and sharing
of information among health care providers, who are involved with an
individual's health care, to improve the care.

"Certified prescreener" means an employee of the
local community services board or behavioral health authority, or its designee,
who is skilled in the assessment and treatment of mental illness and has
completed a certification program approved by the Department of Behavioral
Health and Developmental Services.

"Clinical experience" means providing direct
behavioral health services on a full-time basis or equivalent hours of
part-time work to children and adolescents who have diagnoses of mental illness
and includes supervised internships, supervised practicums, and supervised
field experience for the purpose of Medicaid reimbursement of (i) intensive
in-home services, (ii) day treatment for children and adolescents, (iii)
community-based residential services for children and adolescents who are
younger than 21 years of age (Level A), or (iv) therapeutic behavioral services
(Level B). Experience shall not include unsupervised internships, unsupervised
practicums, and unsupervised field experience. The equivalency of part-time
hours to full-time hours for the purpose of this requirement shall be as
established by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"DBHDS" means the Department of Behavioral Health
and Developmental Services.

"DMAS" means the Department of Medical Assistance
Services and its contractor or contractors.

"EPSDT" means early and periodic screening,
diagnosis, and treatment.

"Human services field" means the same as the term is
defined by DBHDS in the document entitled Human Services and Related Fields
Approved Degrees/Experience, issued March 12, 2013, revised May 3, 2013.

"Individual service plan" or "ISP" means
the same as the term is defined in 12VAC30-50-226.

"LMHP-resident" or "LMHP-R" means the same
as "resident" as defined in (i) 18VAC115-20-10 for licensed
professional counselors; (ii) 18VAC115-50-10 for licensed marriage and family
therapists; or (iii) 18VAC115-60-10 for licensed substance abuse treatment
practitioners. An LMHP-resident shall be in continuous compliance with the
regulatory requirements of the applicable counseling profession for supervised
practice and shall not perform the functions of the LMHP-R or be considered a
"resident" until the supervision for specific clinical duties at a
specific site has been preapproved in writing by the Virginia Board of Counseling.
For purposes of Medicaid reimbursement to their supervisors for services
provided by such residents, they shall use the title "Resident" in
connection with the applicable profession after their signatures to indicate
such status.

"LMHP-resident in psychology" or "LMHP-RP"
means the same as an individual in a residency, as that term is defined in
18VAC125-20-10, program for clinical psychologists. An LMHP-resident in
psychology shall be in continuous compliance with the regulatory requirements
for supervised experience as found in 18VAC125-20-65 and shall not perform the
functions of the LMHP-RP or be considered a "resident" until the
supervision for specific clinical duties at a specific site has been
preapproved in writing by the Virginia Board of Psychology. For purposes of
Medicaid reimbursement by supervisors for services provided by such residents,
they shall use the title "Resident in Psychology" after their
signatures to indicate such status.

"LMHP-supervisee in social work,"
"LMHP-supervisee," or "LMHP-S" means the same as
"supervisee" as defined in 18VAC140-20-10 for licensed clinical
social workers. An LMHP-supervisee in social work shall be in continuous
compliance with the regulatory requirements for supervised practice as found in
18VAC140-20-50 and shall not perform the functions of the LMHP-S or be
considered a "supervisee" until the supervision for specific clinical
duties at a specific site is preapproved in writing by the Virginia Board of
Social Work. For purposes of Medicaid reimbursement to their supervisors for
services provided by supervisees, these persons shall use the title
"Supervisee in Social Work" after their signatures to indicate such
status.

"Progress notes" means individual-specific
documentation that contains the unique differences particular to the
individual's circumstances, treatment, and progress that is also signed and
contemporaneously dated by the provider's professional staff who have prepared
the notes. Individualized and member-specific progress notes are part of the
minimum documentation requirements and shall convey the individual's status,
staff interventions, and, as appropriate, the individual's progress, or lack of
progress, toward goals and objectives in the ISP. The progress notes shall also
include, at a minimum, the name of the service rendered, the date of the
service rendered, the signature and credentials of the person who rendered the
service, the setting in which the service was rendered, and the amount of time
or units/hours required to deliver the service. The content of each progress
note shall corroborate the time/units billed. Progress notes shall be
documented for each service that is billed.

"Psychoeducation" means (i) a specific form of
education aimed at helping individuals who have mental illness and their family
members or caregivers to access clear and concise information about mental
illness and (ii) a way of accessing and learning strategies to deal with mental
illness and its effects in order to design effective treatment plans and strategies.

"Psychoeducational activities" means systematic
interventions based on supportive and cognitive behavior therapy that
emphasizes an individual's and his family's needs and focuses on increasing the
individual's and family's knowledge about mental disorders, adjusting to mental
illness, communicating and facilitating problem solving and increasing coping
skills.

"Qualified mental health professional-child" or
"QMHP-C" means the same as the term is defined in 12VAC35-105-20.

"Qualified mental health professional-eligible" or
"QMHP-E" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-590.

"Qualified paraprofessional in mental health" or
"QPPMH" means the same as the term is defined in 12VAC35-105-20 and
consistent with the requirements of 12VAC35-105-1370.

"Service-specific provider intake" means the
face-to-face interaction in which the provider obtains information from the
child or adolescent, and parent or other family member or members, as
appropriate, about the child's or adolescent's mental health status. It
includes documented history of the severity, intensity, and duration of mental
health care problems and issues and shall contain all of the following
elements: (i) the presenting issue/reason for referral, (ii) mental health
history/hospitalizations, (iii) previous interventions by providers and
timeframes and response to treatment, (iv) medical profile, (v) developmental
history including history of abuse, if appropriate, (vi) educational/vocational
status, (vii) current living situation and family history and relationships,
(viii) legal status, (ix) drug and alcohol profile, (x) resources and
strengths, (xi) mental status exam and profile, (xii) diagnosis, (xiii)
professional summary and clinical formulation, (xiv) recommended care and
treatment goals, and (xv) the dated signature of the LMHP, LMHP-supervisee,
LMHP-resident, or LMHP-RP.

"Services provided under arrangement" means the same
as defined in 12VAC30-130-850.

b. Intensive in-home services (IIH) to children and
adolescents under age 21 shall be time-limited interventions provided in the
individual's residence and when clinically necessary in community settings. All
interventions and the settings of the intervention shall be defined in the
Individual Service Plan. All IIH services shall be designed to specifically
improve family dynamics, provide modeling, and the clinically necessary
interventions that increase functional and therapeutic interpersonal relations
between family members in the home. IIH services are designed to promote
psychoeducational benefits in the home setting of an individual who is at risk
of being moved into an out-of-home placement or who is being transitioned to
home from an out-of-home placement due to a documented medical need of the
individual. These services provide crisis treatment; individual and family
counseling; communication skills (e.g., counseling to assist the individual and
his parents or guardians, as appropriate, to understand and practice
appropriate problem solving, anger management, and interpersonal interaction,
etc.); care coordination with other required services; and 24-hour emergency
response.

(1) These services shall be limited annually to 26 weeks.
Service authorization shall be required for Medicaid reimbursement prior to the
onset of services. Services rendered before the date of authorization shall not
be reimbursed.

(2) Service authorization shall be required for services to
continue beyond the initial 26 weeks.

(3) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(4) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

c. Therapeutic day treatment (TDT) shall be provided two or
more hours per day in order to provide therapeutic interventions. Day treatment
programs, limited annually to 780 units, provide evaluation; medication
education and management; opportunities to learn and use daily living skills
and to enhance social and interpersonal skills (e.g., problem solving, anger
management, community responsibility, increased impulse control, and
appropriate peer relations, etc.); and individual, group and family counseling.

(1) Service authorization shall be required for Medicaid
reimbursement.

(2) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
service-specific provider intakes and ISPs are set out in this section.

(3) These services may be rendered only by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or a QMHP-E.

d. Community-based services for children and adolescents under
21 years of age (Level A) pursuant to 42 CFR 440.031(d).

(1) Such services shall be a combination of therapeutic
services rendered in a residential setting. The residential services will
provide structure for daily activities, psychoeducation, therapeutic
supervision, care coordination, and psychiatric treatment to ensure the
attainment of therapeutic mental health goals as identified in the individual
service plan (plan of care). Individuals qualifying for this service must
demonstrate medical necessity for the service arising from a condition due to
mental, behavioral or emotional illness that results in significant functional
impairments in major life activities in the home, school, at work, or in the
community. The service must reasonably be expected to improve the child's
condition or prevent regression so that the services will no longer be needed.
The application of a national standardized set of medical necessity criteria in
use in the industry, such as McKesson InterQual® Criteria or an
equivalent standard authorized in advance by DMAS, shall be required for this
service.

(2) In addition to the residential services, the child must
receive, at least weekly, individual psychotherapy that is provided by an LMHP,
LMHP-supervisee, LMHP-resident, or LMHP-RP.

(3) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(4) Authorization shall be required for Medicaid
reimbursement. Services that were rendered before the date of service
authorization shall not be reimbursed.

(5) Room and board costs shall not be reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(6) These residential providers must be licensed by the
Department of Social Services, Department of Juvenile Justice, or Department of
Behavioral Health and Developmental Services under the Standards for Licensed
Children's Residential Facilities (22VAC40-151), Regulation Governing Juvenile
Group Homes and Halfway Houses (6VAC35-41), or Regulations for Children's
Residential Facilities (12VAC35-46).

(7) Daily progress notes shall document a minimum of seven
psychoeducational activities per week. Psychoeducational programming must
include, but is not limited to, development or maintenance of daily living
skills, anger management, social skills, family living skills, communication
skills, stress management, and any care coordination activities.

(8) The facility/group home must coordinate services with
other providers. Such care coordination shall be documented in the individual's
medical record. The documentation shall include who was contacted, when the
contact occurred, and what information was transmitted.

(9) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services based upon incomplete, missing, or outdated service-specific
provider intakes or ISPs shall be denied reimbursement. Requirements for
intakes and ISPs are set out in 12VAC30-60-61.

(10) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(1) Such services must be therapeutic services rendered in a
residential setting that provide structure for daily activities,
psychoeducation, therapeutic supervision, care coordination, and psychiatric
treatment to ensure the attainment of therapeutic mental health goals as
identified in the individual service plan (plan of care). Individuals
qualifying for this service must demonstrate medical necessity for the service
arising from a condition due to mental, behavioral or emotional illness that
results in significant functional impairments in major life activities in the
home, school, at work, or in the community. The service must reasonably be
expected to improve the child's condition or prevent regression so that the
services will no longer be needed. The application of a national standardized
set of medical necessity criteria in use in the industry, such as McKesson
InterQual® Criteria, or an equivalent standard authorized in advance
by DMAS shall be required for this service.

(2) Authorization is required for Medicaid reimbursement.
Services that are rendered before the date of service authorization shall not
be reimbursed.

(3) Room and board costs shall not be reimbursed. Facilities
that only provide independent living services are not reimbursed. DMAS shall
reimburse only for services provided in facilities or programs with no more
than 16 beds.

(4) These residential providers must be licensed by the
Department of Behavioral Health and Developmental Services (DBHDS) under the
Regulations for Children's Residential Facilities (12VAC35-46).

(5) Daily progress notes shall document that a minimum of
seven psychoeducational activities per week occurs. Psychoeducational
programming must include, but is not limited to, development or maintenance of
daily living skills, anger management, social skills, family living skills,
communication skills, and stress management. This service may be provided in a
program setting or a community-based group home.

(6) The individual must receive, at least weekly, individual
psychotherapy and, at least weekly, group psychotherapy that is provided as
part of the program.

(7) Individuals shall be discharged from this service when
other less intensive services may achieve stabilization.

(8) Service-specific provider intakes shall be required at the
onset of services and ISPs shall be required during the entire duration of
services. Services that are based upon incomplete, missing, or outdated
service-specific provider intakes or ISPs shall be denied reimbursement.
Requirements for intakes and ISPs are set out in 12VAC30-60-61.

(9) These services may only be rendered by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, a QMHP-E, or a QPPMH.

(10) The facility/group home shall coordinate necessary
services with other providers. Documentation of this care coordination shall be
maintained by the facility/group home in the individual's record. The
documentation shall include who was contacted, when the contact occurred, and
what information was transmitted.

6. Inpatient psychiatric services shall be covered for
individuals younger than age 21 for medically necessary stays in inpatient
psychiatric facilities described in 42 CFR 440.160(b)(1) and (b)(2) for
the purpose of diagnosis and treatment of mental health and behavioral
disorders identified under EPSDT when such services are rendered by (i) a
psychiatric hospital or an inpatient psychiatric program in a hospital
accredited by the Joint Commission on Accreditation of Healthcare Organizations
or (ii) a psychiatric facility that is accredited by the Joint Commission on
Accreditation of Healthcare Organizations or the Commission on Accreditation of
Rehabilitation Facilities. Inpatient psychiatric hospital admissions at general
acute care hospitals and freestanding psychiatric hospitals shall also be
subject to the requirements of 12VAC30-50-100, 12VAC30-50-105, and
12VAC30-60-25. Inpatient psychiatric admissions to residential treatment
facilities shall also be subject to the requirements of Part XIV (12VAC30-130-850
et seq.) of 12VAC30-130.

a. The inpatient psychiatric services benefit for individuals
younger than 21 years of age shall include services defined at 42 CFR 440.160
that are provided under the direction of a physician pursuant to a certification
of medical necessity and plan of care developed by an interdisciplinary team of
professionals and shall involve active treatment designed to achieve the
child's discharge from inpatient status at the earliest possible time. The
inpatient psychiatric services benefit shall include services provided under
arrangement furnished by Medicaid enrolled providers other than the inpatient
psychiatric facility, as long as the inpatient psychiatric facility (i)
arranges for and oversees the provision of all services, (ii) maintains all
medical records of care furnished to the individual, and (iii) ensures that the
services are furnished under the direction of a physician. Services provided
under arrangement shall be documented by a written referral from the inpatient
psychiatric facility. For purposes of pharmacy services, a prescription ordered
by an employee or contractor of the facility who is licensed to prescribe drugs
shall be considered the referral.

b. Eligible services provided under arrangement with the inpatient
psychiatric facility shall vary by provider type as described in this
subsection. For purposes of this section, emergency services means the same as
is set out in 12VAC30-50-310 B.

c. Inpatient psychiatric services are reimbursable only when
the treatment program is fully in compliance with (i) 42 CFR Part 441 Subpart
D, specifically 42 CFR 441.151(a) and (b) and 441.152 through 441.156, and
(ii) the conditions of participation in 42 CFR Part 483 Subpart G. Each
admission must be preauthorized and the treatment must meet DMAS requirements for
clinical necessity.

d. Service limits may be exceeded based on medical necessity
for individuals eligible for EPSDT.

7. Hearing aids shall be reimbursed for individuals younger
than 21 years of age according to medical necessity when provided by practitioners
licensed to engage in the practice of fitting or dealing in hearing aids under
the Code of Virginia.

8. Behavioral therapy services shall be covered for
individuals under the age of 21 years.

a. Definitions. The following words and terms when used in
this subsection shall have the following meanings unless the context clearly
indicates otherwise:

"Behavioral therapy" means systematic
interventions provided by licensed practitioners acting within the scope of
practice defined under a Virginia Health Professions Regulatory Board and
covered as remedial care under 42 CFR 440.130(d) within the home to
individuals under 21 years of age. Behavioral therapy includes applied
behavioral analysis and is primarily provided in the family home. Family
counseling and training related to the implementation of the behavioral therapy
shall be included as part of the behavioral therapy service. Behavioral therapy
services shall be subject to clinical reviews and determined as medically
necessary. Behavioral therapy may be intermittently provided in community
settings when approved settings are deemed by DMAS or its contractor as
medically necessary treatment.

"Individual" means the child or adolescent under
the age of 21 who is receiving behavioral therapy services.

"Primary care provider" means a licensed medical
practitioner who provides preventive and primary health care and is responsible
for providing routine EPSDT screening and referral and coordination of other
medical services needed by the individual.

b. Behavioral therapy services shall be designed to enhance
communication skills and decrease maladaptive patterns of behavior, which if
left untreated, could lead to more complex problems and the need for a greater
or a more intensive level of care. The service goal shall be to ensure the
individual's family or caregiver is trained to effectively manage the
individual's behavior in the home using modification strategies. The services
shall be provided in accordance with the individual service plan and clinical assessment
summary.

c. Behavioral therapy services shall be covered when
recommended by the individual's primary care provider or other licensed
physician, licensed physician assistant, or licensed nurse practitioner and
determined by DMAS or its contractor to be medically necessary to correct or
ameliorate significant impairments in major life activities that have resulted
from either developmental, behavioral, or mental disabilities. Criteria for
medical necessity are set out in 12VAC30-60-61 H. Service-specific provider
intakes shall be required at the onset of these services in order to receive
authorization for reimbursement. Individual service plans (ISPs) shall be
required throughout the entire duration of services. The services shall be
provided in accordance with the individual service plan and clinical assessment
summary. These services shall be provided in settings that are natural or
normal for a child or adolescent without a disability, such as his home, unless
there is justification in the ISP, which has been authorized for reimbursement,
to include service settings that promote a generalization of behaviors across
different settings to maintain the targeted functioning outside of the
treatment setting in the patient's residence and the larger community within
which the individual resides. Covered behavioral therapy services shall
include:

2. School divisions may provide routine well-child screening
services under the State Plan. Diagnostic and treatment services that are
otherwise covered under early and periodic screening, diagnosis and treatment
services, shall not be covered for school divisions. School divisions to
receive reimbursement for the screenings shall be enrolled with DMAS as clinic
providers.

a. Children enrolled in managed care organizations shall
receive screenings from those organizations. School divisions shall not receive
reimbursement for screenings from DMAS for these children.

b. School-based services are listed in a recipient's
individualized education program (IEP) and covered under one or more of the
service categories described in § 1905(a) of the Social Security Act. These
services are necessary to correct or ameliorate defects of physical or mental
illnesses or conditions.

3. Service providersProviders shall be licensed
under the applicable state practice act or comparable licensing criteria by the
Virginia Department of Education, and shall meet applicable qualifications
under 42 CFR Part 440. Identification of defects, illnesses or conditions and
services necessary to correct or ameliorate them shall be performed by
practitioners qualified to make those determinations within their licensed
scope of practice, either as a member of the IEP team or by a qualified
practitioner outside the IEP team.

a. Service providersProviders shall be employed
by the school division or under contract to the school division.

b. Supervision of services by providers recognized in
subdivision 4 of this subsection shall occur as allowed under federal
regulations and consistent with Virginia law, regulations, and DMAS provider
manuals.

c. The services described in subdivision 4 of this subsection
shall be delivered by school providers, but may also be available in the
community from other providers.

d. Services in this subsection are subject to utilization
control as provided under 42 CFR Parts 455 and 456.

e. The IEP shall determine whether or not the services
described in subdivision 4 of this subsection are medically necessary and that
the treatment prescribed is in accordance with standards of medical practice.
Medical necessity is defined as services ordered by IEP providers. The IEP
providers are qualified Medicaid providers to make the medical necessity
determination in accordance with their scope of practice. The services must be
described as to the amount, duration and scope.

4. Covered services include:

a. Physical therapy, occupational therapy and services for
individuals with speech, hearing, and language disorders, performed by, or
under the direction of, providers who meet the qualifications set forth at 42
CFR 440.110. This coverage includes audiology services;

b. Skilled nursing services are covered under 42 CFR
440.60. These services are to be rendered in accordance to the licensing
standards and criteria of the Virginia Board of Nursing. Nursing services are
to be provided by licensed registered nurses or licensed practical nurses but
may be delegated by licensed registered nurses in accordance with the
regulations of the Virginia Board of Nursing, especially the section on
delegation of nursing tasks and procedures. The licensed practical nurse is
under the supervision of a registered nurse.

(1) The coverage of skilled nursing services shall be of a
level of complexity and sophistication (based on assessment, planning,
implementation and evaluation) that is consistent with skilled nursing services
when performed by a licensed registered nurse or a licensed practical nurse.
These skilled nursing services shall include, but not necessarily be limited to
dressing changes, maintaining patent airways, medication
administration/monitoring and urinary catheterizations.

(2) Skilled nursing services shall be directly and
specifically related to an active, written plan of care developed by a
registered nurse that is based on a written order from a physician, physician
assistant or nurse practitioner for skilled nursing services. This order shall
be recertified on an annual basis.

c. Psychiatric and psychological services performed by
licensed practitioners within the scope of practice are defined under state law
or regulations and covered as physicians' services under 42 CFR 440.50 or
medical or other remedial care under 42 CFR 440.60. These outpatient services
include individual medical psychotherapy, group medical psychotherapy coverage,
and family medical psychotherapy. Psychological and neuropsychological testing
are allowed when done for purposes other than educational diagnosis, school
admission, evaluation of an individual with intellectual disability prior to
admission to a nursing facility, or any placement issue. These services are
covered in the nonschool settings also. School providers who may render these
services when licensed by the state include psychiatrists, licensed clinical
psychologists, school psychologists, licensed clinical social workers,
professional counselors, psychiatric clinical nurse specialists, marriage and
family therapists, and school social workers.

d. Personal care services are covered under 42 CFR
440.167 and performed by persons qualified under this subsection. The personal
care assistant is supervised by a DMAS recognized school-based health
professional who is acting within the scope of licensure. This practitioner
develops a written plan for meeting the needs of the child, which is
implemented by the assistant. The assistant must have qualifications comparable
to those for other personal care aides recognized by the Virginia Department of
Medical Assistance Services. The assistant performs services such as assisting
with toileting, ambulation, and eating. The assistant may serve as an aide on a
specially adapted school vehicle that enables transportation to or from the
school or school contracted provider on days when the student is receiving a
Medicaid-covered service under the IEP. Children requiring an aide during
transportation on a specially adapted vehicle shall have this stated in the
IEP.

e. Medical evaluation services are covered as physicians'
services under 42 CFR 440.50 or as medical or other remedial care under 42 CFR
440.60. Persons performing these services shall be licensed physicians,
physician assistants, or nurse practitioners. These practitioners shall
identify the nature or extent of a child's medical or other health related
condition.

f. Transportation is covered as allowed under 42 CFR
431.53 and described at State Plan Attachment 3.1-D (12VAC30-50-530).
Transportation shall be rendered only by school division personnel or
contractors. Transportation is covered for a child who requires transportation
on a specially adapted school vehicle that enables transportation to or from
the school or school contracted provider on days when the student is receiving
a Medicaid-covered service under the IEP. Transportation shall be listed in the
child's IEP. Children requiring an aide during transportation on a specially
adapted vehicle shall have this stated in the IEP.

g. Assessments are covered as necessary to assess or reassess
the need for medical services in a child's IEP and shall be performed by any of
the above licensed practitioners within the scope of practice. Assessments and
reassessments not tied to medical needs of the child shall not be covered.

5. DMAS will ensure through quality management review that
duplication of services will be monitored. School divisions have a
responsibility to ensure that if a child is receiving additional therapy
outside of the school, that there will be coordination of services to avoid
duplication of service.

D. Family planning services and supplies for individuals of
child-bearing age.

1. Service must be ordered or prescribed and directed or
performed within the scope of the license of a practitioner of the healing arts.

2. Family planning services shall be defined as those services
that delay or prevent pregnancy. Coverage of such services shall not include
services to treat infertility or services to promote fertility. Family planning
services shall not cover payment for abortion services and no funds shall be
used to perform, assist, encourage, or make direct referrals for abortions.

3. Family planning services as established by § 1905(a)(4)(C)
of the Social Security Act include annual family planning exams; cervical cancer
screening for women; sexually transmitted infection (STI) testing; lab services
for family planning and STI testing; family planning education, counseling, and
preconception health; sterilization procedures; nonemergency transportation to
a family planning service; and U.S. Food and Drug Administration approved
prescription and over-the-counter contraceptives, subject to limits in
12VAC30-50-210.

12VAC30-60-61. Services related to the Early and Periodic
Screening, Diagnosis and Treatment Program (EPSDT); community mental health
services for children; behavioral therapy services for children.

A. Definitions. The following words and terms when used in
this section shall have the following meanings unless the context indicates
otherwise:

"At risk" means one or more of the following: (i)
within the two weeks before the intake, the individual shall be screened by an
LMHP for escalating behaviors that have put either the individual or others at
immediate risk of physical injury; (ii) the parent/guardian is unable to manage
the individual's mental, behavioral, or emotional problems in the home and is
actively, within the past two to four weeks, seeking an out-of-home placement;
(iii) a representative of either a juvenile justice agency, a department of
social services (either the state agency or local agency), a community services
board/behavioral health authority, the Department of Education, or an LMHP, as
defined in 12VAC35-105-20, and who is neither an employee of nor consultant to
the intensive in-home (IIH) services or therapeutic day treatment (TDT)
provider, has recommended an out-of-home placement absent an immediate change
of behaviors and when unsuccessful mental health services are evident; (iv) the
individual has a history of unsuccessful services (either crisis intervention,
crisis stabilization, outpatient psychotherapy, outpatient substance abuse
services, or mental health support) within the past 30 days; (v) the treatment
team or family assessment planning team (FAPT) recommends IIH services or TDT
for an individual currently who is either: (a) transitioning out of residential
treatment facility Level C services, (b) transitioning out of a group home
Level A or B services, (c) transitioning out of acute psychiatric
hospitalization, or (d) transitioning between foster homes, mental health case
management, crisis intervention, crisis stabilization, outpatient
psychotherapy, or outpatient substance abuse services.

"Failed services" or "unsuccessful
services" means, as measured by ongoing behavioral, mental, or physical
distress, that the service or services did not treat or resolve the
individual's mental health or behavioral issues.

"Individual" means the Medicaid-eligible person
receiving these services and for the purpose of this section includes children
from birth up to 12 years of age or adolescents ages 12 through 20 years.

"Licensed assistant behavior analyst" means a
person who has met the licensing requirements of 18VAC85-150 and holds a valid
license issued by the Department of Health Professions.

"Licensed behavior analyst" means a person who
has met the licensing requirements of 18VAC85-150 and holds a valid license
issued by the Department of Health Professions.

"New service" means a community mental health
rehabilitation service for which the individual does not have a current service
authorization in effect as of July 17, 2011.

"Out-of-home placement" means placement in one or
more of the following: (i) either a Level A or Level B group home; (ii) regular
foster home if the individual is currently residing with his biological family
and, due to his behavior problems, is at risk of being placed in the custody of
the local department of social services; (iii) treatment foster care if the
individual is currently residing with his biological family or a regular foster
care family and, due to the individual's behavioral problems, is at risk of
removal to a higher level of care; (iv) Level C residential facility; (v)
emergency shelter for the individual only due either to his mental health or behavior
or both; (vi) psychiatric hospitalization; or (vii) juvenile justice system or
incarceration.

"Service-specific provider intake" means the
evaluation that is conducted according to the Department of Medical Assistance
Services (DMAS) intake definition set out in 12VAC30-50-130.

B. Utilization review requirements for all services in
this section.

1. The services described in this section shall be
rendered consistent with the definitions, service limits, and requirements
described in this section and in 12VAC30-50-130.

2. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

3. Individual service plans (ISPs) shall meet all of the
requirements set forth in 12VAC30-60-143 B 7.

C. IntensiveUtilization review of intensive
in-home (IIH) services for children and adolescents.

1. The service definition for intensive in-home (IIH) services
is contained in 12VAC30-50-130.

2. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from mental, behavioral or emotional
illness which results in significant functional impairments in major life
activities. Individuals must meet at least two of the following criteria on a
continuing or intermittent basis to be authorized for these services:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services or judicial system
are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

3. Prior to admission, an appropriate service-specific
provider intake, as defined in 12VAC30-50-130, shall be conducted by the
licensed mental health professional (LMHP), LMHP-supervisee, LMHP-resident, or
LMHP-RP, documenting the individual's diagnosis and describing how service
needs can best be met through intervention provided typically but not solely in
the individual's residence. The service-specific provider intake shall describe
how the individual's clinical needs put the individual at risk of out-of-home
placement and shall be conducted face-to-face in the individual's residence.
Claims for services that are based upon service-specific provider intakes that
are incomplete, outdated (more than 12 months old), or missing shall not be
reimbursed.

4. An individual service plan (ISP) shall be fully completed,
signed, and dated by either an LMHP, LMHP-supervisee, LMHP-resident, LMHP-RP, a
QMHP-C, or a QMHP-E and the individual and individual's parent/guardian within
30 days of initiation of services. The ISP shall meet all of the requirements
as defined in 12VAC30-50-226.

5. DMAS shall not reimburse for dates of services in which the
progress notes are not individualized and child-specific. Duplicated progress
notes shall not constitute the required child-specific individualized progress
notes. Each progress note shall demonstrate unique differences particular to
the individual's circumstances, treatment, and progress. Claim payments shall
be retracted for services that are supported by documentation that does not
demonstrate unique differences particular to the individual.

6. Services shall be directed toward the treatment of the
eligible individual and delivered primarily in the family's residence with the
individual present. As clinically indicated, the services may be rendered in
the community if there is documentation, on that date of service, of the
necessity of providing services in the community. The documentation shall
describe how the alternative community service location supports the identified
clinical needs of the individual and describe how it facilitates the
implementation of the ISP. For services provided outside of the home, there
shall be documentation reflecting therapeutic treatment as set forth in the ISP
provided for that date of service in the appropriately signed and dated
progress notes.

7. These services shall be provided when the clinical needs of
the individual put him at risk for out-of-home placement, as these terms are
defined in this section:

a. When services that are far more intensive than outpatient
clinic care are required to stabilize the individual in the family situation,
or

b. When the individual's residence as the setting for services
is more likely to be successful than a clinic.

The service-specific provider intake shall describe how the
individual meets either subdivision a or b of this subdivision.

8. Services shall not be provided if the individual is no
longer a resident of the home.

9. Services shall also be used to facilitate the transition to
home from an out-of-home placement when services more intensive than outpatient
clinic care are required for the transition to be successful. The individual
and responsible parent/guardian shall be available and in agreement to
participate in the transition.

10. At least one parent/legal guardian or responsible adult
with whom the individual is living must be willing to participate in the intensive
in-home services with the goal of keeping the individual with the family. In
the instance of this service, a responsible adult shall be an adult who lives
in the same household with the child and is responsible for engaging in therapy
and service-related activities to benefit the individual.

11. The enrolled service provider shall be licensed by
the Department of Behavioral Health and Developmental Services (DBHDS) as a
provider of intensive in-home services. The provider shall also have a provider
enrollment agreement with DMAS or its contractor in effect prior to the
delivery of this service that indicates that the provider will offer intensive
in-home services.

12. Services must only be provided by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, QMHP-C, or QMHP-E. Reimbursement shall
not be provided for such services when they have been rendered by a QPPMH as
defined in 12VAC35-105-20.

13. The billing unit for intensive in-home service shall be
one hour. Although the pattern of service delivery may vary, intensive in-home
services is an intensive service provided to individuals for whom there is an
ISP in effect which demonstrates the need for a minimum of three hours a week
of intensive in-home service, and includes a plan for service provision of a
minimum of three hours of service delivery per individual/family per week in
the initial phase of treatment. It is expected that the pattern of service
provision may show more intensive services and more frequent contact with the
individual and family initially with a lessening or tapering off of intensity
toward the latter weeks of service. Service plans shall incorporate an
individualized discharge plan that describes transition from intensive in-home
to less intensive or nonhome based services.

14. The ISP, as defined in 12VAC30-50-226, shall be updated as
the individual's needs and progress changes and signed by either the parent or
legal guardian and the individual. Documentation shall be provided if the
individual, who is a minor child, is unable or unwilling to sign the ISP. If
there is a lapse in services that is greater than 31 consecutive calendar days
without any communications from family members/legal guardian or the individual
with the service provider, the provider shall discharge the individual.
If the individual continues to need services, then a new intake/admission shall
be documented and a new service authorization shall be required.

15. The provider shall ensure that the maximum
staff-to-caseload ratio fully meets the needs of the individual.

16. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the service
provider shall contact the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers who are using the same
electronic health record for the individual shall meet requirements for
delivery of the notification, monthly updates, and discharge summary upon entry
of the information in the electronic health records.

17. Emergency assistance shall be available 24 hours per day,
seven days a week.

19. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or guardian, shall
inform him of the individual's receipt of IIH services. The documentation shall
include who was contacted, when the contact occurred, and what information was
transmitted.

D. TherapeuticUtilization review of therapeutic
day treatment for children and adolescents.

1. The service definition for therapeutic day treatment (TDT)
for children and adolescents is contained in 12VAC30-50-130.

2. Therapeutic day treatment is appropriate for children and
adolescents who meet one of the following:

a. Children and adolescents who require year-round treatment
in order to sustain behavior or emotional gains.

b. Children and adolescents whose behavior and emotional
problems are so severe they cannot be handled in self-contained or resource
emotionally disturbed (ED) classrooms without:

(1) This programming during the school day; or

(2) This programming to supplement the school day or school
year.

c. Children and adolescents who would otherwise be placed on
homebound instruction because of severe emotional/behavior problems that
interfere with learning.

d. Children and adolescents who (i) have deficits in social
skills, peer relations or dealing with authority; (ii) are hyperactive; (iii)
have poor impulse control; (iv) are extremely depressed or marginally connected
with reality.

e. Children in preschool enrichment and early intervention
programs when the children's emotional/behavioral problems are so severe that
they cannot function in these programs without additional services.

3. The service-specific provider intake shall document the
individual's behavior and describe how the individual meets these specific
service criteria in subdivision 2 of this subsection.

4. Prior to admission to this service, a service-specific
provider intake shall be conducted by the LMHP as defined in 12VAC35-105-20.

5. An ISP shall be fully completed, signed, and dated by an LMHP,
LMHP-supervisee, LMHP-resident, LMHP-RP, a QMHP-C, or QMHP-E and by the
individual or the parent/guardian within 30 days of initiation of services and
shall meet all requirements of an ISP as defined in 12VAC30-50-226. Individual
progress notes shall be required for each contact with the individual and shall
meet all of the requirements as defined in 12VAC30-50-130.

6. Such services shall not duplicate those services provided
by the school.

7. Individuals qualifying for this service shall demonstrate a
clinical necessity for the service arising from a condition due to mental,
behavioral or emotional illness which results in significant functional
impairments in major life activities. Individuals shall meet at least two of
the following criteria on a continuing or intermittent basis:

a. Have difficulty in establishing or maintaining normal
interpersonal relationships to such a degree that they are at risk of
hospitalization or out-of-home placement because of conflicts with family or
community.

b. Exhibit such inappropriate behavior that documented,
repeated interventions by the mental health, social services, or judicial
system are or have been necessary.

c. Exhibit difficulty in cognitive ability such that they are
unable to recognize personal danger or recognize significantly inappropriate
social behavior.

8. The enrolled provider of therapeutic day treatment for
child and adolescent services shall be licensed by DBHDS to provide day support
services. The provider shall also have a provider enrollment agreement in
effect with DMAS prior to the delivery of this service that indicates that the
provider offers therapeutic day treatment services for children and
adolescents.

10. The minimum staff-to-individual ratio as defined by DBHDS
licensing requirements shall ensure that adequate staff is available to meet
the needs of the individual identified on the ISP.

11. The program shall operate a minimum of two hours per day
and may offer flexible program hours (i.e., before or after school or during
the summer). One unit of service shall be defined as a minimum of two hours but
less than three hours in a given day. Two units of service shall be defined as
a minimum of three but less than five hours in a given day. Three units of
service shall be defined as five or more hours of service in a given day.

12. Time required for academic instruction when no treatment
activity is going on shall not be included in the billing unit.

13. Services shall be provided following a service-specific
provider intake that is conducted by an LMHP, LMHP-supervisee, LMHP-resident,
or LMHP-RP. An LMHP, LMHP-supervisee, or LMHP-resident shall make and document
the diagnosis. The service-specific provider intake shall include the elements
as defined in 12VAC30-50-130.

14. If an individual receiving services is also receiving case
management services pursuant to 12VAC30-50-420 or 12VAC30-50-430, the provider
shall collaborate with the case manager and provide notification of the
provision of services. In addition, the provider shall send monthly updates to
the case manager on the individual's status. A discharge summary shall be sent
to the case manager within 30 days of the service discontinuation date. Service
providersProviders and case managers using the same electronic
health record for the individual shall meet requirements for delivery of the
notification, monthly updates, and discharge summary upon entry of this
documentation into the electronic health record.

15. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the child's receipt of community mental health
rehabilitative services. The documentation shall include who was contacted,
when the contact occurred, and what information was transmitted. The
parent/legal guardian shall be required to give written consent that this
provider has permission to inform the primary care provider of the child's or
adolescent's receipt of community mental health rehabilitative services.

16. Providers shall comply with DMAS marketing requirements as
set out in 12VAC30-130-2000. Providers that DMAS determines have violated these
marketing requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000 E.

17. If there is a lapse in services greater than 31
consecutive calendar days, the provider shall discharge the individual. If the
individual continues to need services, a new intake/admission documentation
shall be prepared and a new service authorization shall be required.

E. Community-basedUtilization review of
community-based services for children and adolescents under 21 years of age
(Level A).

1. The staff ratio must be at least 1 to 6 during the day and
at least 1 to 10 between 11 p.m. and 7 a.m. The program director supervising
the program/group home must be, at minimum, a QMHP-C or QMHP-E (as defined in
12VAC35-105-20). The program director must be employed full time.

2. In order for Medicaid reimbursement to be approved, at
least 50% of the provider's direct care staff at the group home must meet DBHDS
paraprofessional staff criteria, defined in 12VAC35-105-20.

3. Authorization is required for Medicaid reimbursement. All
community-based services for children and adolescents under 21 (Level A)
require authorization prior to reimbursement for these services. Reimbursement
shall not be made for this service when other less intensive services may
achieve stabilization.

4. Services must be provided in accordance with an individual
service plan (ISP), which must be fully completed within 30 days of
authorization for Medicaid reimbursement.

5. Prior to admission, a service-specific provider intake
shall be conducted according to DMAS specifications described in
12VAC30-50-130.

6. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

7. If an individual receiving community-based services for
children and adolescents under 21 (Level A) is also receiving case management
services, the provider shall collaborate with the case manager by notifying the
case manager of the provision of Level A services and shall send monthly
updates on the individual's progress. When the individual is discharged from
Level A services, a discharge summary shall be sent to the case manager within
30 days of the service discontinuation date. Service providersProviders
and case managers who are using the same electronic health record for the
individual shall meet requirements for the delivery of the notification,
monthly updates, and discharge summary upon entry of this documentation into
the electronic health record.

F. TherapeuticUtilization review of therapeutic
behavioral services for children and adolescents under 21 years of age (Level
B).

1. The staff ratio must be at least 1 to 4 during the day and
at least 1 to 8 between 11 p.m. and 7 a.m. The clinical director must be a
licensed mental health professional. The caseload of the clinical director must
not exceed 16 individuals including all sites for which the same clinical
director is responsible.

2. The program director must be full time and be a QMHP-C or
QMHP-E with a bachelor's degree and at least one year's clinical experience.

3. For Medicaid reimbursement to be approved, at least 50% of
the provider's direct care staff at the group home shall meet DBHDS
paraprofessional staff criteria, as defined in 12VAC35-105-20. The program/group
home must coordinate services with other providers.

4. All therapeutic behavioral services (Level B) shall be
authorized prior to reimbursement for these services. Services rendered without
such prior authorization shall not be covered.

5. Services must be provided in accordance with an ISP, which
shall be fully completed within 30 days of authorization for Medicaid
reimbursement.

6. Prior to admission, a service-specific provider intake
shall be performed using all elements specified by DMAS in 12VAC30-50-130.

7. Such service-specific provider intakes shall be performed
by an LMHP, an LMHP-supervisee, LMHP-resident, or LMHP-RP.

8. If an individual receiving therapeutic behavioral services
for children and adolescents under 21 (Level B) is also receiving case
management services, the therapeutic behavioral services provider must
collaborate with the care coordinator/case manager by notifying him of the
provision of Level B services and the Level B services provider shall send
monthly updates on the individual's treatment status. When the individual is
discharged from Level B services, a discharge summary shall be sent to the care
coordinator/case manager within 30 days of the discontinuation date.

9. The provider shall determine who the primary care provider
is and, upon receiving written consent from the individual or parent/legal
guardian, shall inform him of the individual's receipt of these Level B
services. The documentation shall include who was contacted, when the contact
occurred, and what information was transmitted. If these individuals are
children or adolescents, then the parent/legal guardian shall be required to
give written consent that this provider has permission to inform the primary
care provider of the individual's receipt of community mental health
rehabilitative services.

G. Utilization review. Utilization reviews for
community-based services for children and adolescents under 21 years of age
(Level A) and therapeutic behavioral services for children and adolescents
under 21 years of age (Level B) shall include determinations whether providers
meet all DMAS requirements, including compliance with DMAS marketing
requirements. Providers that DMAS determines have violated the DMAS marketing
requirements shall be terminated as a Medicaid provider pursuant to
12VAC30-130-2000(E).

H. Utilization review of behavioral therapy services for
children.

1. In order for Medicaid to cover behavioral therapy
services, the provider shall be enrolled with DMAS or its contractor as a
Medicaid provider. The provider enrollment agreement shall be in effect prior
to the delivery of services for Medicaid reimbursement.

2. Behavioral therapy services shall be covered for
individuals younger than 21 years of age when recommended by the individual's primary
care provider, licensed physician, licensed physician assistant, or licensed
nurse practitioner and determined by DMAS or its contractor to be medically
necessary to correct or ameliorate significant impairments in major life
activities that have resulted from either developmental, behavioral, or mental
disabilities.

3. Behavioral therapy services require service
authorization. Services shall be authorized only when eligibility and medical
necessity criteria are met.

4. Prior to treatment, an appropriate service-specific
provider intake shall be conducted, documented, signed, and dated by a licensed
behavior analyst (LBA), licensed assistant behavior analyst (LABA), or LMHP,
LMHP-R, LMHP-RP, or LMHP-S, acting within the scope of his practice, documenting
the individual's diagnosis (including a description of the behavior or
behaviors targeted for treatment with their frequency, duration, and intensity)
and describing how service needs can best be met through behavioral therapy.
The service-specific provider intake shall be conducted face-to-face in the
individual's residence with the individual and parent or guardian. A new
service-specific provider intake shall be conducted and documented every three
months, or more often if needed, to observe the individual and family
interaction, review clinical data, and revise the ISP as needed.

5. The ISP shall be developed upon admission to the service
and reviewed within 30 days of admission to the service to ensure that all
treatment goals are reflective of the individual's clinical needs and shall
describe each treatment goal, targeted behavior, one or more measurable
objectives for each targeted behavior, the behavioral modification strategy to
be used to manage each targeted behavior, the plan for parent or caregiver
training, care coordination, and the measurement and data collection methods to
be used for each targeted behavior in the ISP. The ISP shall be fully
completed, signed, and dated by an LBA, LABA, LMHP, LMHP-R, LMHP-RP, or LMHP-S
and the individual and individual's parent or guardian. The ISP shall be
reviewed every three months (at the same time the service-specific provider
intake is conducted and documented) and updated as the individual progresses
and his needs change, but at least annually, and shall be signed by either the
parent or legal guardian and the individual. Documentation shall be provided if
the individual, who is a minor child, is unable or unwilling to sign the ISP.

6. Reimbursement for the initial service-specific provider
intake and the initial ISP shall be limited to five hours without service
authorization. If additional time is needed to complete these documents,
service authorization shall be required.

7. Clinical supervision shall be required for Medicaid
reimbursement of behavioral therapy services that are rendered by an LABA,
LMHP-R, LMHP-RP, or LMHP-S or unlicensed staff consistent with the scope of
practice as described by the applicable Virginia Department of Health
Professions regulatory board. Clinical supervision shall occur at least weekly
and, as documented in the individual's medical record, shall include a review
of progress notes and data and dialogue with supervised staff about the
individual’s progress and the effectiveness of the ISP.

8. The following shall not be covered under this service:

a. Screening to identify physical, mental, or developmental
conditions that may require evaluation or treatment. Screening is covered as an
EPSDT service provided by the primary care provider and is not covered as a
behavioral therapy service under this section.

b. Services other than the initial service-specific
provider intake that are provided but are not based upon the individual's ISP
or linked to a service in the ISP. Time not actively involved in providing
services directed by the ISP shall not be reimbursed.

c. Services that are based upon an incomplete, missing, or
outdated service-specific provider intake or ISP.

d. Sessions that are conducted for family support,
education, recreational, or custodial purposes, including respite or child
care.

e. Services that are provided by a provider but are
rendered primarily by a relative or guardian who is legally responsible for the
individual's care.

f. Services that are provided in a clinic or provider's
office without documented justification for the location in the ISP.

g. Services that are provided in the absence of the
individual and a parent or other authorized caregiver identified in the ISP
with the exception of treatment review processes described in 12VAC30-60-61 H
11 e, care coordination, and clinical supervision.

h. Services provided by a local education agency.

i. Provider travel time.

9. Behavioral therapy services shall not be reimbursed
concurrently with community mental health services described in 12VAC30-50-130
B 5 or 12VAC30-50-226, or behavioral, psychological, or psychiatric therapeutic
consultation described in 12VAC30-120-756, 12VAC30-120-1000, or
12VAC30-135-320.

10. If the individual is receiving targeted case management
services under the Medicaid state plan (defined in 12VAC30-50-410 through
12VAC30-50-491, the provider shall notify the case manager of the provision of
behavioral therapy services unless the parent or guardian requests that the
information not be released. In addition, the provider shall send monthly
updates to the case manager on the individual's status pursuant to a valid
release of information. A discharge summary shall be sent to the case manager
within 30 days of the service discontinuation date. A refusal of the parent or
guardian to release information shall be documented in the medical record for
the date the request was discussed.

11. Other standards to ensure quality of services:

a. Services shall be delivered only by an LBA, LABA, LMHP,
LMHP-R, LMHP-RP, LMHP-S, or clinically supervised unlicensed staff consistent
with the scope of practice as described by the applicable Virginia Department
of Health Professions regulatory board.

b. Individual-specific services shall be directed toward
the treatment of the eligible individual and delivered in the family's
residence unless an alternative location is justified and documented in the
ISP.

c. Individual-specific progress notes shall be created
contemporaneously with the service activities and shall document the name and
Medicaid number of each individual; the provider's name, signature, and date;
and time of service. Documentation shall include activities provided, length of
services provided, the individual's reaction to that day's activity, and
documentation of the individual's and the parent or caregiver's progress toward
achieving each behavioral objective through analysis and reporting of
quantifiable behavioral data. Documentation shall be prepared to clearly
demonstrate efficacy using baseline and service-related data that shows
clinical progress and generalization for the child and family members toward
the therapy goals as defined in the service plan.

d. Documentation of all billed services shall include the
amount of time or billable units spent to deliver the service and shall be
signed and dated on the date of the service by the practitioner rendering the
service.

e. Billable time is permitted for the LBA, LABA, LMHP,
LMHP-R, LMHP-RP, or LMHP-S to better define behaviors and develop documentation
strategies to measure treatment performance and the efficacy of the ISP
objectives, provided that these activities are documented in a progress note as
described in subdivision 11 c of this subsection.

12. Failure to comply with any of the requirements in
12VAC30-50-130 or in this section shall result in retraction.

A. Payment for behavioral therapy services for individuals
younger than 21 years of age shall be the lower of the state agency fee
schedule or actual charge (charge to the general public). All private and
governmental fee-for-service providers shall be reimbursed according to the
same methodology. The agency's rates were set as of October 1, 2011, and are
effective for services on or after that date until rates are revised. Rates are
published on the agency's website at www.dmas.virginia.gov.

B. Providers shall be required to refund payments made by
Medicaid if they fail to maintain adequate documentation to support billed
activities.

12VAC30-120-380. MCO responsibilities.

A. The MCO shall provide, at a minimum, all medically
necessary covered services provided under the State Plan for Medical Assistance
and further defined by written DMAS regulations, policies and instructions,
except as otherwise modified or excluded in this part.

1. Nonemergency services provided by hospital emergency
departments shall be covered by MCOs in accordance with rates negotiated
between the MCOs and the hospital emergency departments.

2. Services that shall be provided outside the MCO network
shall include, but are not limited to, those services identified and
defined by the contract between DMAS and the MCO. Services reimbursed by DMAS
include (i) dental and orthodontic services for children up to age 21 years;
(ii) for all others, dental services (as described in 12VAC30-50-190), (iii)
school health services, (iv) community mental health services
(12VAC30-50-130 and 12VAC30-50-226); (v) early intervention services
provided pursuant to Part C of the Individuals with Disabilities Education Act
(IDEA) of 2004 (as defined in 12VAC30-50-131 and 12VAC30-50-415), and);
(vi) long-term care services provided under the § 1915(c) home-based and
community-based waivers including related transportation to such authorized
waiver services; and (vii) behavioral therapy services as defined in
12VAC30-50-130.

3. The MCOs shall pay for emergency services and family
planning services and supplies whether such services are provided inside or
outside the MCO network.

B. EPSDT services shall be covered by the MCO and defined by
the contract between DMAS and the MCO. The MCO shall have the authority to
determine the provider of service for EPSDT screenings.

C. The MCOs shall report data to DMAS under the contract
requirements, which may include data reports, report cards for members, and ad
hoc quality studies performed by the MCO or third parties.

D. Documentation requirements.

1. The MCO shall maintain records as required by federal and
state law and regulation and by DMAS policy. The MCO shall furnish such
required information to DMAS, the Attorney General of Virginia or his
authorized representatives, or the State Medicaid Fraud Control Unit on request
and in the form requested.

2. Each MCO shall have written policies regarding member
rights and shall comply with any applicable federal and state laws that pertain
to member rights and shall ensure that its staff and affiliated providers take
those rights into account when furnishing services to members in accordance
with 42 CFR 438.100.

3. Providers shall be required to refund payments if they
fail to maintain adequate documentation to support billed activities.

E. The MCO shall ensure that the health care provided to its
members meets all applicable federal and state mandates, community standards
for quality, and standards developed pursuant to the DMAS managed care quality
program.

F. The MCOs shall promptly provide or arrange for the
provision of all required services as specified in the contract between the
Commonwealth and the MCO. Medical evaluations shall be available within 48
hours for urgent care and within 30 calendar days for routine care. On-call
clinicians shall be available 24 hours per day, seven days per week.

G. The MCOs shall meet standards specified by DMAS for
sufficiency of provider networks as specified in the contract between the
Commonwealth and the MCO.

H. Each MCO and its subcontractors shall have in place, and
follow, written policies and procedures for processing requests for initial and
continuing authorizations of service. Each MCO and its subcontractors shall
ensure that any decision to deny a service authorization request or to
authorize a service in an amount, duration, or scope that is less than
requested, be made by a health care professional who has appropriate clinical
expertise in treating the member's condition or disease. Each MCO and its
subcontractors shall have in effect mechanisms to ensure consistent application
of review criteria for authorization decisions and shall consult with the
requesting provider when appropriate.

I. In accordance with 42 CFR 447.50 through 42 CFR
447.60, MCOs shall not impose any cost sharing obligations on members except as
set forth in 12VAC30-20-150 and 12VAC30-20-160.

J. An MCO may not prohibit, or otherwise restrict, a health
care professional acting within the lawful scope of practice, from advising or
advocating on behalf of a member who is his patient in accordance with 42 CFR
438.102.

K. An MCO that would otherwise be required to reimburse for
or provide coverage of a counseling or referral service is not required to do
so if the MCO objects to the service on moral or religious grounds and
furnishes information about the service it does not cover in accordance with 42
CFR 438.102.

VA.R. Doc. No. R13-3527; Filed June 30, 2017, 3:41 p.m.

TITLE 12. HEALTH

DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

Proposed Regulation

Titles of Regulations: 12VAC30-60. Standards
Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-5).

Basis: Section 32.1-325 of the Code of Virginia grants
to the Board of Medical Assistance Services the authority to administer and
amend the Plan for Medical Assistance and to make, adopt, promulgate, and
enforce regulations to implement the state plan. Section 32.1-324 of the Code
of Virginia authorizes the Director of the Department of Medical Assistance
Services (DMAS) to administer and amend the Plan for Medical Assistance
according to the board's requirements. The Medicaid authority as established by
§ 1902(a) of the Social Security Act (42 USC § 1396a) provides
governing authority for payments for services.

Purpose: The purpose of this action is to implement
regulatory changes to more clearly reflect DMAS utilization review procedures.
This action will not affect the health, safety, or welfare of Medicaid
individuals or citizens of the Commonwealth.

Substance: Currently, DMAS regulations do not establish
the steps that are involved in a utilization review. Specifically, the
regulations do not include how a utilization review is initiated, what letters
or communications are sent, and what the deadlines for document submission are.
DMAS is proposing these regulations to provide greater clarity to providers,
Medicaid members, and members of the public about this process. The proposed
changes reflect current DMAS process and do not include changes in the
utilization review process.

Issues: The advantages to these proposed changes are
that they will provide more information and clarity to Medicaid and FAMIS
providers and members and the general public about the utilization review
process. There are no disadvantages to the public, businesses, or the
Commonwealth related to these proposed changes.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The Director
(Director) of the Department of Medical Assistance Services (DMAS) proposes to
amend these regulations to outline the process of utilization review for the
Medicaid and State Children's Health Insurance Program (SCHIP) programs.

Result of Analysis. Benefits likely outweigh costs for all
proposed regulatory changes.

Estimated Economic Impact. Current regulations require service
providers to maintain certain records and states that DMAS or its designee will
perform reviews of the utilization of all Medicaid-covered services but does
not detail how those reviews will take place. The Director proposes to expand
the description of a utilization review to include rules for the utilization
review that have been set by case law or are part of the provider agreement
that all providers must sign in order to receive Medicaid reimbursement. This
additional description includes a requirement that providers supply
documentation to DMAS or its designee "immediately upon demand or upon a
timeframe specified in writing by DMAS or its designee" and requirements
for Preliminary Findings Letters and for additional documentation allowed.

As all additional requirements in the proposed regulations are
already part of the enforceable contract between DMAS and providers, or are
likely enforceable due to prior court decision, no providers are likely to
incur costs on account of these proposed regulatory changes. To the extent that
these proposed changes add clarity to the requirements for utilization reviews,
all interested parties will benefit.

Businesses and Entities Affected. These proposed regulatory
changes will affect all Medicaid and SCHIP providers.

Localities Particularly Affected. No locality is likely to be
particularly affected by these proposed regulatory changes.

Projected Impact on Employment. These proposed regulatory
changes are unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Commonwealth.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. No small businesses are likely to
incur any additional costs on account of these proposed regulatory changes.

Alternative Method that Minimizes Adverse Impact. No small
businesses are likely to incur any additional costs on account of these
proposed regulatory changes.

Adverse Impacts:

Businesses. No businesses are likely to incur any additional
costs on account of these proposed regulatory changes.

Localities. Localities in the Commonwealth are unlikely to see
any adverse impacts on account of these proposed regulatory changes.

Other Entities. No other entities are likely to be adversely
affected by these proposed changes.

Agency Response to Economic Impact Analysis: The agency
has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and raises no issues with the analysis.

Summary:

The proposed amendments standardize the utilization review
process for all provider types, including (i) what letters are sent to
providers, (ii) what documentation may be submitted and when it may be
submitted, and (iii) what deadlines apply.

A. These utilizationThe requirements in
this section shall apply to all Medicaid covered services and all
Medicaid providers unless otherwise specified.

1. Providers shall be required to maintain documentation
detailing all required information about the individuals who are in the
provider's care. Such documentation shall fully disclose the extent of services
provided in order to support the provider's claims for reimbursement for
services rendered. All provider documentation about individuals in the
provider's care shall be written, signed, and dated at the time the services
are rendered.

2. Medicaid providers shall provide all requested records
to DMAS or its designee immediately upon demand or upon a timeframe specified
in writing by DMAS or its designee.

3. Notwithstanding any other DMAS regulation, claims
selected for utilization review shall not be corrected or re-billed.

B. DMAS or its designee shall perform utilization reviews
of all Medicaid services.

1. A utilization review is initiated when DMAS or its
designee:

a. Issues a written notice;

b. Requests onsite access to records;

c. Issues a preliminary findings letter; or

d. Commences a claims analysis.

2. After a utilization review is initiated, DMAS or its
designee shall issue a preliminary findings letter. The preliminary findings
letter shall include a date by which the provider may submit any additional
documentation. DMAS or its designee shall only consider documentation
identified and submitted by the provider prior to the specified deadline. DMAS
or its designee shall only consider documentation that was created
contemporaneously with the date of service.

3. Following a review of documentation submitted according
to subdivision 2 of this subsection, if any, DMAS or its designee shall issue a
final overpayment letter.

4. Providers who are determined not to be in compliance
with DMAS requirements shall be subject to §§ 32.1-312 and 32.1-313 of the Code
of Virginia, 12VAC30-80-130, and 12VAC30-90-250 through 12VAC30-90-257 for the
repayment of any overpayments to DMAS that are identified in the final
overpayment letter.

B.C. Some Medicaid covered services
require an approved service authorization prior to service delivery in order
for reimbursement to occur. 1. To obtain service authorization, all
providers' information supplied to the Department of Medical Assistance
Services (DMAS), service authorization contractor, or the behavioral health
service authorization contractor shall be fully substantiated throughout
individuals' medical records. 2. Providers shall be required to maintain
documentation detailing all relevant information about the Medicaid individuals
who are in providers' care. Such documentation shall fully disclose the extent
of services provided in order to support providers' claims for reimbursement
for services rendered. This documentation shall be written, signed, and dated
at the time the services are rendered unless specified otherwise.

C. DMAS, or its designee, shall perform reviews of the
utilization of all Medicaid covered services pursuant to 42 CFR 440.260 and 42
CFR Part 456.

D. DMAS shall recover expenditures made for covered
services when providers' documentation does not comport with standards
specified in all applicable regulations.

E. Providers who are determined not to be in compliance
with DMAS requirements shall be subject to 12VAC30-80-130 for the repayment of
those overpayments to DMAS.

F.D. Utilization review requirements specific
to the community mental health services, as set out in
12VAC30-50-130 and 12VAC30-50-226, shall be as follows:

1. To apply to be reimbursed as a Medicaid provider, the
required Department of Behavioral Health and Developmental Services (DBHDS)
license shall be either a full, annual, triennial, or conditional license.
Providers must be enrolled with DMAS or the BHSA to be reimbursed. Once a
health care entity has been enrolled as a provider, it shall maintain, and
update periodically as DMAS requires, a current Provider Enrollment Agreement
for each Medicaid service that the provider offers.

2. Health care entities with provisional licenses shall not be
reimbursed as Medicaid providers of community mental health services.

3. Payments shall not be permitted to health care entities
that either hold provisional licenses or fail to enter into a Medicaid Provider
Enrollment Agreement for a service prior to rendering that service.

4. The behavioral health service authorization contractor
shall apply a national standardized set of medical necessity criteria in use in
the industry, such as McKesson InterQual Criteria, or an equivalent standard
authorized in advance by DMAS. Services that fail to meet medical necessity
criteria shall be denied service authorization.

Basis: The Safety and Health Codes Board is authorized
by § 40.1-51 of the Code of Virginia to formulate definitions, rules,
regulations, and standards that are designed for the protection of human life
and property from the unsafe or dangerous construction, installation,
inspection, operation, maintenance, and repair of boilers and pressure vessels
in the Commonwealth.

Purpose: The purpose of this proposed regulatory action
is to provide increased protection of human life, both employee safety and
public safety, and property from the unsafe or dangerous construction,
installation, inspection, operation, and repair of boilers and pressure vessels
in the Commonwealth of Virginia by complying with the most recent editions of
industry required guidance documents.

Substance: The proposed amendments update the
regulations to the most recent editions of certain national standards and
forms, as listed below:

Part CG (General), Part CW (Steam and Waterside Control) and
Part CF (Combustion Side Control) Flame Safeguard of ANSI/ASME CSD-1, Controls
and Safety Devices for Automatically Fired Boilers, 2012, American Society of
Mechanical Engineers

Issues: The primary advantages to the public are the use
of the latest editions of publications required for use by the boiler and
pressure vessel industry and consistency with national references. These
changes are deemed necessary to update the proposed regulations to the current
editions of ASME, NBIC, and NFPA safety and inspection codes that are
incorporated by reference into the Commonwealth's Boiler and Pressure Vessel
Rules and Regulations. The most current editions of required documents, which
contain the latest technological information, will provide both increased
protection of human life (both employee safety and public safety) as well as
protecting property from unsafe or dangerous construction, installation,
inspection, operation, and repair of boilers and pressure vessels in the
Commonwealth of Virginia. Companies that utilize the ASME, NBIC, and NFPA
safety and inspection codes for construction or repair are already required to
have and work to the latest editions of these codes. The proposed regulation
causes no known disadvantages to private citizens or businesses.

The primary advantage for the Commonwealth associated with this
proposed regulatory action is the use of the latest editions of the aforementioned
publications for consistency with the boiler and pressure vessel industry
nationwide. Virginia companies that utilize the ASME, NBIC, and NFPA safety and
inspection codes for construction or repair are already required to have and
work to the latest editions of these codes. The proposed regulation causes no
known disadvantages to the Commonwealth.

Small Business Impact Review Report of Findings: This
proposed regulatory action serves as the report of the findings of the
regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. As the result
of a periodic review,1 the Safety and Health
Codes Board (Board) proposes to adopt the most current versions of several
documents incorporated by reference that set out boiler and pressure vessel
standards, as well as several forms.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. The Board proposes to adopt the
following most recent published editions of safety and inspection codes already
incorporated by reference into the regulation:

These documents have not been updated in the regulation since
2008. The Department of Labor and Industry (DOLI) reports that the difference
between the current and updated standards reflect the most recent technology
available and will provide increased protection to human life and property. For
the most part the updated standards do not increase costs for affected firms.
The new standards specifically would require that new businesses with carbon
dioxide (CO2) tanks for liquid beverage dispensers have signs and CO2
meters/alarms.2

CO2 storage safety meters/alarms protect customers,
employees and emergency first-responders near stored carbon dioxide. A leak
anywhere in a stored CO2 delivery system can quickly fill an
enclosed area with potentially dangerous CO2 levels. Higher
concentrations of CO2 can affect respiratory function and cause
excitation followed by depression of the central nervous system. A high
concentration can displace oxygen in the air. If less oxygen is available to
breathe, symptoms such as rapid breathing, rapid heart rate, clumsiness,
emotional upsets and fatigue can result. As less oxygen becomes available,
nausea and vomiting, collapse, convulsions, coma and death can occur. Lack of
oxygen can cause permanent damage to organs including the brain and heart.3

CO2 storage safety meters/alarms (and signage) that
meet the proposed standards would cost approximately $500.4
Given the potential health risks of undetected CO2 as described
above, the benefits of the proposed requiring of CO2 storage safety
meters/alarms and informative signage likely exceeds the cost.

Businesses and Entities Affected. The proposed amendments
potentially affect businesses that manufacture, repair, own, or operate boilers
or pressure vessels. DOLI estimates that there are approximately 25,000 small
businesses among these types of firms. New businesses with CO2 tanks
for liquid beverage dispensers, such as restaurants, convenience stores,
breweries, etc., would be particularly affected.

Projected Impact on Employment. The proposed amendments would
likely increase the demand for CO2 storage safety meters/alarms. The
firms that manufacture and/or sell them may commensurately increase employment.

Effects on the Use and Value of Private Property. The proposed
amendment does not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not
affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments require that
new small businesses that have CO2 tanks for liquid beverage
dispensers have signs and CO2 meters/alarms. This would increase
costs for such small firms (restaurants, convenience stores, breweries, etc.)
by about $500 for each area that has CO2 tanks for liquid beverage
dispensers.5

Alternative Method that Minimizes Adverse Impact. There is no
apparent alternative method that meets the intended safety goals at a lower
cost.

Adverse Impacts:

Businesses. The proposed amendments require that new businesses
that have CO2 tanks for liquid beverage dispensers have signs and CO2
meters/alarms. This would increase costs for such firms (restaurants, convenience
stores, breweries, etc.) by about $500 for each area that has CO2
tanks for liquid beverage dispensers.6

Localities. The proposed amendments do not adversely affect
localities.

Other Entities. The proposed amendments do not adversely affect
other entities.

Agency's Response to Economic Impact Analysis: The
Department of Labor and Industry has no additional comment in response to the
economic impact analysis.

Summary:

The proposed regulatory action incorporates the most recent
editions of nationally recognized model codes and forms produced by the American
Society of Mechanical Engineers, the National Board of Boiler and Pressure
Vessel Inspectors, and other standard-writing groups into the safety and
inspection regulations for boilers and pressure vessels.

Part I
Definitions

16VAC25-50-10. Definitions.

The following words and terms when used in this chapter shall
have the following meanings, unless the context clearly indicates otherwise:

"Act" means the Boiler and Pressure Vessel Safety
Act, Chapter 3.1 (§ 40.1-51.5 et seq.) of Title 40.1 of the Code of Virginia.

"Alteration" means any change in the item described
on the original Manufacturers' Data Report which affects the pressure
containing capability of the boiler or pressure vessel. Non-physical changes,
such as an increase in the maximum allowable working pressure (internal or
external) or design temperature of a boiler or pressure vessel, shall be
considered an alteration. A reduction in minimum temperature such that
additional mechanical tests are required shall also be considered an alteration.

"Approved" means acceptable to the board,
commissioner or chief inspector as applicable.

"ASME B31" means ASME B31.1-2014, Power Piping,
an International Piping Code, The American Society of Mechanical Engineers.

"ASME Code" means the Boiler and Pressure Vessel
Code of the American Society of Mechanical Engineers approved and adopted by
the governing council of such society and approved and adopted by the board.

"Authorized inspection agency" means one of the
following:

a. A department or division established by a state,
commonwealth or municipality of the United States, or a province of Canada,
which has adopted one or more sections of the Boiler and Pressure Vessel
Code of the ASME Code and whose inspectors hold valid commissions
with the National Board of Boiler and Pressure Vessel Inspectors; or equivalent
qualifications as defined and set forth in 16VAC25-50-50 and 16VAC25-50-70;

b. An inspection agency of an insurance company which is
authorized (licensed) to write boiler and pressure vessel insurance in those
jurisdictions which have examined the agency's inspectors to represent such
jurisdictions as is evident by the issuance of a valid certificate of
competency to the inspector;

c. An owner-user inspection agency as defined in this section;
or

d. A contract fee inspector.

"Board" means the Virginia Safety and Health Codes
Board.

"Boiler" means a closed vessel in which water is
heated, steam is generated, steam is superheated, or any combination of them,
under pressure or vacuum for use externally to itself by the direct application
of heat. The term "boiler" shall include fired units for heating or
vaporizing liquids other than water where these units are separate from
processing systems and are complete within themselves.

"Certificate of competency" means a certificate
issued by the commissioner to a person who has passed the prescribed
examination as provided in 16VAC25-50-50. See §§ 40.1-51.9 and 40.1-51:9:140.1-51.9:1 of the Act.

"Certificate inspection" means an inspection, the
report of which is used by the chief inspector to decide whether or not a
certificate, as provided for in § 40.1-51.10 of the Act may be issued. This
certificate inspection shall be an internal inspection when required;
otherwise, it shall be as complete an inspection as possible.

"Chief inspector" means the chief boiler and
pressure vessel inspector of the Commonwealth.

"Commission, National Board" means the commission
issued by the National Board to a holder of a Certificate of Competency for the
purpose of conducting inspections in the Commonwealth in accordance with
the National Board Bylaws and this chapter. The employer must submit the
inspector's application to the National Board for a commission.

"Commissioner" means the Commissioner of the
Department of Labor and Industry.

"Commonwealth inspector" means any agent appointed
by the commissioner under the provisions of § 40.1-51.9 of the Act.

"Condemned boiler or pressure vessel" means a
boiler or pressure vessel that has been inspected and declared unsafe for use
or disqualified by legal requirements and to which a stamping or marking
designating its condemnation has been applied by the chief or commonwealth
inspector.

"Current edition of the ASME Code" means the
2015 Edition of the ASME Code, which has been adopted by the Safety and Health
Codes Board.

"Department" means the Department of Labor and
Industry.

"Division" means the Boiler Safety Enforcement
Division of the Department of Labor and Industry.

"Electric boiler" means a boiler in which the
source of heat is electricity.

"Examining board" means persons appointed by the
chief inspector to monitor examinations of inspectors.

"Existing installation" means and includes any
boiler or pressure vessel constructed, installed, placed in operation or
contracted for before July 1, 1974.

"External inspection" means an inspection of the
exterior of the boiler or pressure vessel and its appliances when the item is
in operation.

"Heating boiler" means a steam or vapor boiler
operating at pressures not exceeding 15 psig, or a hot water boiler operating
at pressures not exceeding 160 psig or temperature not exceeding 250°F at or
near the boiler outlet.

"High-pressure, high-temperature water boiler"
means a water boiler operating at pressures exceeding 160 psig or temperatures
exceeding 250°F at or near the boiler outlet.

"Hobby boiler" means a steam boiler which serves no
commercial purpose and is used solely for hobby or display and operated solely
for the enjoyment of the owner.

"Hot water supply boiler" means a boiler furnishing
hot water to be used externally to itself at pressures not exceeding 160 psig
or temperatures not exceeding 250°F at or near the boiler outlet, with the
exception of boilers which are directly fired by oil, gas or electricity where
none of the following limitations areis exceeded:

a. Heat input of 200,000 BTU per hour;

b. Water temperature of 210°F; or

c. Nominal water containing capacity of 120 gallons.

"Hot water supply storage tanks" means those heated
by steam or any other indirect means where any one of the following limitations
areis exceeded:

a. Heat input of 200,000 BTU per hour;

b. Water temperature of 210°F; or

c. Nominal water containing capacity of 120 gallons.

"Inspection certificate" means a certificate issued
by the chief inspector for the operation of a boiler or pressure vessel.

"Inspector" means the chief inspector, commonwealth
inspector or special inspector.

"Internal inspection" means a complete examination
of the internal and external surfaces of a boiler or pressure vessel and its
appliances while it is shut down and manhole plates, handhole plates or other
inspection openings removed.

"Lap seam crack" means a failure in a lap joint
extending parallel to the longitudinal joint and located either between or
adjacent to rivet holes.

"Miniature boiler" means any boiler which does not
exceed any one of the following limits:

a. 16 inches inside diameter of shell;

b. 20 square feet heating surface;

c. 5 cubic feet gross volume, exclusive of casing and
insulation; or

d. 100 psig maximum allowable working pressure.

"National Board" means the National Board of Boiler
and Pressure Vessel Inspectors, 1055 Crupper Avenue, Columbus, OH 43229, whose
membership is composed of the chief inspectors of government jurisdictions who
are charged with the enforcement of the provisions of the ASME Code.

"National Board Inspection Code" means the
manual for boiler and pressure vessel inspectors published by the National
Board. Copies of this code may be obtained from the National BoardNB-23,
the National Board Inspection Code, 2015 Edition, The National Board of Boiler
Pressure Vessel Inspectors.

"New boiler or pressure vessel installation" means
all boilers or pressure vessels constructed, installed, placed in operation or
contracted for after July 1, 1974.

"NFPA" means the National Fire Protection
Association.

"Nonstandard boiler or pressure vessel" means a
boiler or pressure vessel that does not bear the stamp of Commonwealth of
Virginia, the ASME stamp or the National Board stamp when applicable.

"Owner or user" means any person, partnership, firm
or corporation who is legally responsible for the safe operation of a boiler or
pressure vessel within the Commonwealth.

"Owner-user inspection agency" means any person,
partnership, firm or corporation registered with the chief inspector and
approved by the board as being legally responsible for inspecting pressure
vessels which they operate in this Commonwealth.

"Portable boiler" means an internally fired boiler
which is primarily intended for temporary location and whose construction and
usage permit it to be readily moved from one location to another.

"Power boiler" means a boiler in which steam or
other vapor is generated at a pressure of more than 15 psig.

"Pressure vessel" means a vessel in which the
pressure is obtained from an external source, or by the application of heat
from an indirect source, or from a direct source, other than those boilers
defined in Part I (16VAC25-50-10 et seq.) of this chapter.

"PSIG" means pounds per square inch gauge.

"R Certificate of Authorization" means an
authorization issued by the National Board for the repair and alteration of
boilers and pressure vessels.

"Reinstalled boiler or pressure vessel" means a
boiler or pressure vessel removed from its original setting and reinstalled at
the same location or at a new location.

"Repair" means work necessary to return a boiler or
pressure vessel to a safe and satisfactory operating condition, provided there
is no deviation from the original design.

"Secondhand boiler or pressure vessel" means a
boiler or pressure vessel which has changed both location and ownership since
the last certificate inspection.

"Special inspector" means an inspector holding a
Virginia Certificate of Competency, and who is regularly employed by an
insurance company authorized (licensed) to write boiler and pressure vessel
insurance in this Commonwealth, an inspector continuously employed by any
company operating pressure vessels in this Commonwealth used or to be used by
the company, or a contract fee inspector.

"Standard boiler or pressure vessel" means a boiler
or pressure vessel which bears the stamp of the Commonwealth of Virginia, the
ASME Code stamp and the National Board stamp when applicable.

"Underwriters' Laboratories" means Underwriters'
Laboratories, Inc., 333 Pfingsten Road, Northbrook, Illinois 60062, which is a
nonprofit, independent organization testing for public safety. It maintains and
operates laboratories for the examination and testing of devices, systems, and
materials to determine their relation to life, fire, casualty hazards and crime
prevention.

"VR Certificate of Authorization" means an
authorization issued by the National Board for the repair of pressure relief
valves.

"Water heater" means a vessel used to supply: (i)
potable hot water; or (ii) both space heat and potable water in combination
which is directly heated by the combustion of fuels, electricity, or any other
source and withdrawn for use external to the system at pressures not to exceed
160 psi or temperatures of 210°F. This term also includes fired storage water
heaters defined by the Virginia Uniform Statewide Building Code as a
"water heater."

A. Boilers and pressure vessels to be installed for operation
in this Commonwealth shall be designed, constructed, inspected, stamped and
installed in accordance with the applicable ASME Boiler and Pressure Vessel
Code including all addenda and applicable code case(s)cases,
other international construction standards which are acceptable to the chief
inspector, and this chapter.

B. Boilers and pressure vessels shall bear the National Board
stamping, except cast iron boilers and UM vessels. A copy of the Manufacturers'
Data Report, signed by the manufacturer's representative and the National Board
commissioned inspector, shall be filed by the owner or user with the chief
inspector prior to its operation in the Commonwealth.

C. Pressure piping -- (including welded piping) -- Piping
external to power boilers extending from the boiler to the first stop valve of
a single boiler, and to the second stop valve in a battery of two or more
boilers is subject to the requirements of the current edition of the
ASME Power Boiler Code, Section I and the design, fabrication,
installation and testing of the valves and piping shall be in conformity with
the applicable paragraphs of the current edition of the ASME Code,
Section I. Applicable ASME data report forms for this piping shall be
furnished by the owner to the chief inspector. Construction rules for
materials, design, fabrication, installation and testing both for the boiler
external piping and the power piping beyond the valve or valves required by the
current edition of the ASME Power Boiler Code, Section I, are
referenced in ANSIASME B31.1, Power piping, and the codeASME
Code.

D. Boilers and pressure vessels brought into the Commonwealth
and not meeting codeASME Code requirements shall not be operated
unless the owner/user is granted a variance in accordance with § 40.1-51.19 of
the Act.

The request for variance shall include all documentation
related to the boiler or pressure vessel that will provide evidence of equivalent
fabrication standards, i.e., design specification, calculations, material
specifications, detailed construction drawings, fabrication and inspection
procedures and qualification records, examination, inspection and test records,
and any available manufacturers' data report.

In order to facilitate such a variance approval, the
submission of documentation, in the English language and in current U.S.
standard units of measure would be helpful. The following list of documents,
while not all inclusive, would be useful in providing evidence of safety
equivalent to ASME Code construction:

1. List of materials used for each pressure part;

2. The design calculations to determine the maximum allowable
working pressure in accordance with the ASME Boiler and Pressure Vessel
Code, applicable section, edition and addenda;

3. The design code used and the source of stress values for
the materials used in the design calculations;

4. The welding procedures used and the qualification records
for each procedure;

5. The material identification for each type of welding
material used;

6. The performance qualification records for each welder or
welding operator used in the construction of the boiler or pressure vessel;

7. The extent of any nondestructive examination (NDE)
performed and the qualification records of NDE operators;

8. Record of final pressure test signed by a third party
inspector;

9. Name and organization of the third party inspection agency;

10. A certification from a licensed professional engineer stating
that the boiler or pressure vessel has been constructed to a standard providing
equivalent safety to that of the ASME Boiler and Pressure Vessel Code. A
signature, date and seal of the certifying engineer isare
required;

11. Where applicable, a matrix of differences between the
actual construction of the boiler or pressure vessel for which a variance is
requested and a similar boiler or pressure vessel that is codeASME
Code stamped; and

12. Where applicable, a letter from an insurance company stating
that it will insure the boiler or pressure vessel.

After notification of a violation of these rules and
regulationsthis chapter, an owner/user desiring a variance shall
submit a request for variance within 30 days.

The chief inspector shall respond to any request for a
variance within 30 days of receipt of all required documentation, and
shall submit a recommendation to the commissioner, who will make the decision
on the variance.

E. Before secondhand equipment is installed, application for
permission to install shall be filed by the owner or user with the chief
inspector and approval obtained.

F. Electric boilers, subject to the requirements of the Act
and this chapter, shall bear the Underwriters' Laboratories label on the
completed unit or assembly by the manufacturer. This label shall be in addition
to the code symbol stamping requirements of the ASME Code and the
National Board.

16VAC25-50-30. Frequency of inspections of boilers and pressure
vessels.

A. Power boilers and high-pressure, high-temperature water
boilers shall receive an annual internal inspection for certification. Such
boilers shall also receive, where possible, an annual external inspection,
given while under representative operating conditions.

2. Water boilers shall receive an external inspection with an
internal inspection at the discretion of the inspector where construction
permits.

C. Except as provided for in subsection E of this section,
pressure vessels subject to internal corrosion shall receive a certificate
inspection biennially. This inspection shall be an internal inspection
conducted at the discretion of the inspector where construction permits.

D. Except as provided for in subsection E of this section,
pressure vessels not subject to internal corrosion shall receive a certificate
inspection biennially. This inspection shall be an external inspection, with an
internal inspection conducted at the discretion of the inspector where
construction permits.

E. Pressure vessels that are under the supervision of an
authorized owner-user inspection agency shall be inspected at intervals in a
manner as agreed upon between the Commissioner and that agency.

F. Boiler and pressure vessel components of nuclear power
plants, that are included in the Act, shall be inspected as
provided by Section XI of the ASME Boiler and Pressure Vessel
Code, Section XI.

G. Based upon documentation of such actual service conditions
by the owner or user of the operating equipment, the Commissioner may permit
variations in the inspection requirements as provided in the Act.

16VAC25-50-260. Removal of safety appliances.

A. No person shall attempt to remove or do any work on any
safety appliance prescribed by this chapter while a boiler or pressure vessel
is in operation, except as provided in applicable sections of the current
edition of the ASME Code. Should any of these appliances be removed for
repair during an outage of a boiler or pressure vessel, they must be
reinstalled and in proper working order before the object is again placed in
service.

B. No person shall load the safety valve or valves in any
manner to maintain a working pressure in excess of that stated on the
inspection certificate.

16VAC25-50-280. Requirements for new installations.

A. No boiler or pressure vessel shall be installed in this
Commonwealth unless it has been constructed, inspected and stamped as provided
in Part II, 16VAC25-50-20 except:

1. Those exempt by the Act;

2. Those outlined in Part II, 16VAC25-50-20 D; and

3. Those existing boilers and pressure vessels whichthat
are to be reinstalled.

B. All new boiler and pressure vessel installations,
including reinstalled and secondhand boilers and pressure vessels, shall be
installed in accordance with the requirements of the current edition of the
ASME Code and this chapter.

C. A boiler or pressure vessel constructed equivalent to ASME
Code standards, or having the standard stamping of another state that
has adopted a standard of construction equivalent to the standard of this
Commonwealth, may be accepted by the chief inspector. The person desiring to
install the boiler or pressure vessel shall make application for the
installation prior to construction and shall file the Manufacturers' Data
Report for the boiler or pressure vessel with the chief inspector following construction
and prior to installation.

D. The stamping shall not be concealed by insulation or paint
and shall be exposed at all times unless a suitable record is kept of the
location of the stamping so that it may be readily uncovered at any time this
may be desired.

16VAC25-50-300. Return loop connection.

The return water connections to all low-pressure, steam
heating boilers supplying a gravity return heating system shall be arranged to
form a loop so that the water cannot be forced out of the boiler below the safe
water level. This connection, known as a "return pipe loop
connection," is shown in Section IV,the current edition of the
ASME Heating Boiler Code, Section IV.

16VAC25-50-330. Operation.

The current edition of the ASME Code, Section VII, Recommended
Rules for Care of Power Boilers, Section VII, and the current edition
of the ASME Code, Section VI, Recommended Rules for Care of Heating
Boilers, Section VI, of the ASME Code, shall be used as a guide for
proper and safe operating practices.

Part III
Existing Installations

16VAC25-50-360. Power and high-pressure, high-temperature water
boilers.

A. Age limit of existing boilers.

1. The age limit of any boiler of nonstandard construction,
installed before July 1, 1974, other than one having a riveted, longitudinal
lap joint, shall be 30 years; however, any boiler passing a thorough internal
and external inspection, and not displaying any leakage or distress
under a hydrostatic pressure test of 1-1/2 times the allowable working pressure
held for at least 30 minutes, may be continued in operation without
reduction in working pressure. The age limit of any boiler having riveted,
longitudinal, lap joints and operating at a pressure in excess of 50
psig shall be 20 years. This type of boiler, when removed from an existing
setting, shall not be reinstalled for a pressure in excess of 15 psig. A
reasonable time for replacement, not to exceed one year, may be given at the
discretion of the chief inspector.

2. The shell or drum of a boiler in which a typical lap seam
crack is discovered along a longitudinal riveted joint for either butt or lap
joints shall be permanently removed from service.

3. The age limit of boilers of standard construction,
installed before July 1, 1974, shall be determined from the results of a
thorough internal and external inspection by an authorized inspector and the
application of an appropriate pressure test. Hydrostatic test pressure shall be
1-1/2 times the allowable working pressure and maintained for 30 minutes. The
boiler may be continued in service at the same working pressure provided there
is no evidence of leakage or distress under these test conditions.

4. The minimum temperature of the water used for the
hydrostatic test of low-pressure boilers and pressure vessels shall be 60°F.
The minimum temperature of the water used for the hydrostatic test of power
boilers shall be 70°F or ambient whichever is greater.

B. The maximum allowable working pressure for standard
boilers shall be determined in accordance with the applicable provisions of the
edition of the ASME Code under which they were constructed and stamped.

C. 1. The maximum allowable working pressure on the shell of
a nonstandard boiler shall be determined by the strength of the weakest section
of the structure, computed from the thickness of the plate, the tensile
strength of the plate, the efficiency of the longitudinal joint or tube
ligaments, the inside diameter of the weakest course and the factor of safety
allowed by this chapter.

TStE

=

Maximum allowable working pressure, psi

RFS

where:

TS = ultimate tensile strength of shell plates, psi

t = minimum thickness of shell plate, in weakest course,
inches

E = efficiency of longitudinal joint:

For tube ligaments, E shall be determined by the rules in the
ASME Code, Section I of the ASME Code for Power Boilers. For riveted
joints, E shall be determined by the rules in the applicable edition of the
ASME Code. For seamless construction, E shall be considered 100%.

R = inside radius of the weakest course of the shell, in
inches

FS = factor of safety permitted.

2. Tensile strength. When the tensile strength of steel or
wrought iron shell plates is not known, it shall be taken as 55,000 psi.

3. Crushing strength of mild steel. The resistance to crushing
of mild steel shall be taken at 95,000 psi of cross-sectional area.

4. Strength of rivets in shear. When computing the ultimate
strength of rivets in shear, the following values, in pounds per square inch,
of the cross-sectional area of the rivet shank shall be used.

PSI

Iron rivets in single shear

38,000

Iron rivets in double shear

76,000

Steel rivets in single shear

44,000

Steel rivets in double shear

88,000

When the diameter of the rivet holes in the longitudinal
joints of a boiler is not known, the diameter and cross-sectional area of
rivets, after driving, may be selected from Table 1, or as ascertained by
cutting out one rivet in the body of the joint.

TABLE 1
SIZES OF RIVETS BASED ON PLATE THICKNESS
(in inches)

Plate of Thickness

Rivet Diameter after Driving

1/4

11/16

9/32

11/16

5/16

3/4

11/32

3/4

3/8

13/16

13/32

13/16

7/16

15/16

15/32

15/16

1/2

15/16

9/16

1-1/16

5/8

1-1/16

5. Factors of safety. The following factors of safety shall be
increased by the inspector if the condition and safety of the boiler demand it:

a. The lowest factor of safety permissible on existing
installations shall be 4.5 for vessels built prior to January 1, 1999. For
vessels built on or after January 1, 1999, the factor of safety may be 4.0.
Horizontal-return-tubular boilers having continuous longitudinal lap seams more
than 12 feet in length, shall have a factor of safety of eight. When
this type of boiler is removed from its existing setting, it shall not be
reinstalled for pressures in excess of 15 psig.

b. Reinstalled or secondhand boilers shall have a minimum
factor of safety of six when the longitudinal seams are of lap-riveted
construction, and a minimum factor of safety of five when the longitudinal
seams are of butt-strap and double-strap construction.

D. Cast-iron headers and mud drums. The maximum allowable
working pressure on a water tube boiler, the tubes of which are secured to cast
iron or malleable-iron headers, or which have cast iron mud drums, shall not
exceed 160 psig.

1. The use of weighted-lever safety valves, or safety valves
having either the seat or disk of cast iron, shall be prohibited. Valves of
this type shall be replaced by direct, spring-loaded, pop-type valves that
conform to the requirements of the current edition of the ASME Code,
Section I.

2. Each boiler shall have at least one safety valve,
and, if it has more than 500 square feet of water-heating surface or an
electric power input of more than 500 kilowatts, it shall have two or more
safety valves.

3. The valve or valves shall be connected to the boiler,
independent of any other steam connection, and attached as close as possible to
the boiler without unnecessary intervening pipe or fittings. Where alteration
is required to conform to this requirement, the chief inspector shall allow the
owner or user reasonable time in which to complete the work.

4. No valves of any description shall be placed between the
safety valve and the boiler nor on the escape pipe, if used, between the safety
valve and the atmosphere, except as provided by applicable sections of the current
edition of the ASME Code. When an escape pipe is used, it shall be at least
full size of the safety-valve discharge and fitted with an open drain to
prevent water lodging in the upper part of the safety valve or escape pipe.
When an elbow is placed on a safety valve escape pipe, it shall be located
close to the safety-valve outlet or the escape pipe shall be anchored and
supported securely. All safety valve discharges shall be located or piped as
not to endanger persons working in the area.

5. The safety-valve capacity of each boiler shall be so that
the safety valve or valves will discharge all the steam that can be generated
by the boiler without allowing the pressure to rise more than 6.0% above the
highest pressure to which any valve is set, and in no case to more than 6.0%
above the maximum allowable working pressure.

6. One or more safety valves on every boiler shall be set at
or below the maximum allowable working pressure. The remaining valves may be
set within a range of 3.0% above the maximum allowable working pressure, but
the range of setting of all the safety valves on a boiler shall not exceed 10%
of the highest pressure to which any valve is set.

7. When two or more boilers, operating at different pressures
and safety valve settings, are interconnected, the lower pressure boilers or
interconnected piping shall be equipped with safety valves of sufficient
capacity to prevent overpressure, considering the maximum generating capacity
of all boilers.

8. In those cases where the boiler is supplied with feedwater
directly from water mains without the use of feeding apparatus (not to include
return traps), no safety valve shall be set at a pressure higher than 94% of
the lowest pressure obtained in the supply main feeding the boiler.

9. The relieving capacity of the safety valves on any boiler
shall be checked by one of the three following methods and, if found to be
insufficient, additional valves shall be provided:

a. By making an accumulation test, which consists of shutting
off all other steam-discharge outlets from the boiler and forcing the fires to
the maximum. The safety-valve capacity shall be sufficient to prevent a rise of
pressure in excess of 6.0% of the maximum allowable working pressure. This
method shall not be used on a boiler with a superheater or reheater.

b. By measuring the maximum amount of fuel that can be burned
and computing the corresponding evaporative capacity (steam-generating
capacity) upon the basis of the heating value of this fuel. These computations
shall be made as outlined in the appendix of the current edition of the
ASME Code, Section I.

c. By measuring the maximum amount of feedwater that can be
evaporated.

When either of the methods (b or c) outlined in this
subdivision is employed, the sum of the safety-valve capacities shall be equal
to or greater than the maximum evaporative capacity (maximum steam-generating
capacity) of the boiler.

10. The relieving capacity of safety valves for forced-flow steam
generators shall be in accordance with the requirements of Section Ithe
current edition of the ASME Boiler Code, Section I.

11. Safety valves and safety relief valves requiring repair
shall be replaced with a new valve or repaired by the original manufacturer,
its authorized representative or the holder of a "VR" Stamp.

G. Boiler feeding.

1. Each boiler shall have a feed supply whichthat
will permit it to be fed at any time while under pressure.

2. A boiler having more than 500 square feet of water-heating
surface shall have at least two means of feeding, one of which shall be an
approved feed pump or injector. A source of feed directly from water mains at a
pressure 6.0% greater than the set pressure of the safety valve with the
highest setting may be considered one of the means. As provided in the current
edition of the ASME Power Boiler Code, Section I, boilers fired by
gaseous, liquid or solid fuel in suspension may be equipped with a single means
of feeding water provided means are furnished for the immediate shutoff of heat
input if the water feed is interrupted.

3. The feedwater shall be introduced into the boiler in a
manner so that it will not be discharged close to riveted joints of shell or
furnace sheets, or directly against surfaces exposed to products of combustion,
or to direct radiation from the fire.

4. The feed piping to the boiler shall be provided with a
check valve near the boiler and a valve or cock between the check valve and the
boiler. When two or more boilers are fed from a common source, there shall also
be a valve on the branch to each boiler between the check valve and source of
supply. Whenever a globe valve is used on feed piping, the inlet shall be under
the disk of the valve.

5. In all cases where returns are fed back to the boiler by
gravity, there shall be a check valve and stop valve in each return line, the
stop valve to be placed between the boiler and the check valve, and both shall
be located as close to the boiler as is practicable. No stop valves shall be placed
in the supply and return pipe connections of a single boiler installation.

6. Where deaerating heaters are not employed, the temperature
of the feedwater shall not be less than 120°F to avoid the possibility of
setting up localized stress. Where deaerating heaters are employed, the minimum
feedwater temperature shall not be less than 215°F so that dissolved gases may
be thoroughly released.

H. Water level indicators.

1. Each boiler shall have at least one water gauge glass
installed and located so that the lowest visible part of the water glass shall
be at least two inches above the lowest permissible water level, at which level
there will be no danger of overheating any part of the boiler when in operation
at that level; except as provided by the current edition of the ASME
Code.

2. No outlet connections (except for damper regulator,
feedwater regulator, low-water fuel cutout, drain, steam gauges, or such
apparatus that does not permit the escape of an appreciable amount of steam or
water from it) shall be placed on the piping that connects the water column to
the boiler. The water column shall be provided with a valved drain of at least
3/4 inch pipe size; the drain is to be piped to a safe location.

3. When the direct reading of gauge glass water level is not
readily visible to the operator in his working area dependable indirect
indications shall be provided utilizing remote level indicators or equipment to
transmit the gauge glass image. When remote level indication is provided for
the operator instead of the gauge glass, the minimum level reference shall be
clearly marked.

I. Steam gauges.

1. Each steam boiler shall have a steam gauge, with dial range
not less than 1-1/2 times the maximum allowable working pressure, connected to
the steam space or to the steam connection to the water column. The steam gauge
shall be connected to a siphon or equivalent device of sufficient capacity to
keep the gauge tube filled with water and arranged so that the gauge cannot be
shut off from the boiler except by a cock with a tee or lever handle placed in
the pipe near the gauge. The handle of the cock shall be parallel to the pipe
in which it is located when the cock is open.

2. When a steam gauge connection longer than eight feet
becomes necessary, a shutoff valve may be used near the boiler provided the
valve is of the outside-screw-and-yoke type and is locked open. The line shall
be of ample size with provision for free blowing.

3. Each boiler shall be provided with a test gauge connection
and suitable valving for the exclusive purpose of attaching a test gauge so
that the accuracy of the boiler steam gauge may be ascertained while the boiler
is in operation.

J. Stop valves.

1. Except for a single-boiler, prime-mover installation, each
steam outlet from a boiler (except safety valve and water column connections)
shall be fitted with a stop valve located as close as practicable to the
boiler.

2. In a single-boiler, prime-mover installation the steam stop
valve may be omitted provided the prime-mover throttle valve is equipped with
an indicator to show whether the valve is open or closed and is designed to
withstand the required hydrostatic pressure test of the boiler.

3. When a stop valve is so located that water can accumulate,
ample drains shall be provided. The drainage shall be piped to a safe location
and shall not be discharged on the top of the boiler or its setting.

4. When boilers provided with manholes are connected to a
common steam main, the steam connection from each boiler shall be fitted with
two stop valves having an ample free-blow drain between them. The discharge of
the drain shall be visible to the operator and shall be piped clear of the
boiler setting. The stop valves shall consist preferably of one automatic
nonreturn valve (set next to the boiler) and a second valve of the
outside-screw-and-yoke type.

K. Blowoff connection.

1. The construction of the setting around each blowoff pipe
shall permit free expansion and contraction. Careful attention shall be given
to the problem of sealing these setting openings without restricting the
movement of the blowoff piping.

2. All blowoff piping, when exposed to furnace heat, shall be
protected by firebrick or other heat-resisting material constructed so that the
piping may be inspected.

3. Each boiler shall have a blowoff pipe, fitted with a valve
or cock, in direct connection with the lowest water space. Cocks shall be of
the gland or guard type and suitable for the pressure allowed. The use of globe
valves shall not be permitted. Where the maximum allowable working pressure
exceeds 100 psig, each blowoff pipe shall be provided with two valves or a
valve and cock; however only one valve need be provided for forced-flow steam
generators with no fixed steam and waterline;, high-temperature
water boilers, and those used for traction or portable purposes with
less than 100 gallons normal water content.

4. Blowoff piping shall comply with the requirements of the current
edition of the ASME Code, Section I, and ANSIASME
B31.1, from the boiler to the valve or valves, and shall be run full size
without use of reducers or bushings. All piping shall be steel. Galvanized
steel pipe and fittings shall not be used for blowoff piping.

5. All fittings between the boiler and blowoff valve shall be
of steel. In case of renewal of blowoff pipe or fittings, they shall be
installed in accordance with this chapter for new installations.

L. Repairs and renewals of boiler fittings and appliances.
Whenever repairs are made to fittings or appliances or it becomes necessary to
replace them, such repairs or replacements shall comply with the requirements
for new installations.

M. Each automatically fired steam boiler or system of
commonly connected steam boilers shall have at least one steam pressure control
device that will shut off the fuel supply to each boiler or system of commonly
connected boilers when the steam pressure reaches a preset maximum operating
pressure. In addition, each individual automatically fired steam boiler shall
have a high steam pressure limit control that will prevent generation of steam
pressure in excess of the maximum allowable working pressure.

N. Conditions not covered by this chapter. All cases not
specifically covered by this chapter shall be treated as new installations
pursuant to 16VAC25-50-280 or may be referred to the chief inspector for
instructions concerning the requirements.

16VAC25-50-370. Heating boilers.

A. Standard boilers. The maximum allowable working pressure
of standard boilers shall in no case exceed the pressure indicated by the
manufacturer's identification stamped or cast on the boiler or on a plate
secured to it.

B. Nonstandard riveted boilers. The maximum allowable working
pressure on the shell of a nonstandard riveted heating boiler shall be
determined in accordance with 16VAC25-50-360 C covering existing installations,
power boilers, except that in no case shall the maximum allowable working
pressure of a steam heating boiler exceed 15 psig, or a hot water boiler exceed
160 psig or 250°F temperature.

C. Nonstandard welded boilers. The maximum allowable working
pressure of a nonstandard steel or wrought iron heating boiler of welded
construction shall not exceed 15 psig for steam. For other than steam service,
the maximum allowable working pressure shall be calculated in accordance with Section
IV of the ASME Code, Section IV.

D. Nonstandard cast iron boilers.

1. The maximum allowable working pressure of a nonstandard
boiler composed principally of cast iron shall not exceed 15 psig for steam
service or 30 psig for hot water service.

2. The maximum allowable working pressure of a nonstandard
boiler having cast iron shell or heads and steel or wrought iron tubes shall
not exceed 15 psig for steam service or 30 psig for hot water service.

E. Safety valves.

1. Each steam boiler must have one or more officially rated
(ASME Code stamped and National Board rated) safety valves of the spring
pop type adjusted to discharge at a pressure not to exceed 15 psig. Seals shall
be attached in a manner to prevent the valve from being taken apart without
breaking the seal. The safety valves shall be arranged so that they cannot be
reset to relieve at a higher pressure than the maximum allowable working
pressure of the boiler. A body drain connection below seat level shall be
provided by the manufacturer, and this drain shall not be plugged during
or after field installation. For valves exceeding two inch pipe size, the drain
hole or holes shall be tapped not less than 3/8 inch pipe size. For valves less
than two inches, the drain hole shall not be less than ¼1/4 inch
in diameter.

2. No safety valve for a steam boiler shall be smaller than
3/4 inch unless the boiler and radiating surfaces consist of a self-contained
unit. No safety valve shall be larger than 4-1/2 inches. The inlet opening
shall have an inside diameter equal to, or greater than, the seat diameter.

3. The minimum relieving capacity of the valve or valves shall
be governed by the capacity marking on the boiler.

4. The minimum valve capacity in pounds per hour shall be the
greater of that determined by dividing the maximum BTU output at the boiler nozzle
obtained by the firing of any fuel for which the unit is installed by 1,000;
or shall be determined on the basis of the pounds of steam generated per hour
per square foot of boiler heating surface as given in Table 2. When operating
conditions require it a greater relieving capacity shall be provided. In every
case, the requirements of subdivision 5 of this subsection shall be met.

NOTES: When a boiler is fired only by a gas giving a heat
value of not in excess of 200 BTU per cubic foot, the minimum safety valve or
safety relief valve relieving capacity may be based on the value given for
handfired boilers abovein Table 2.

For heating surface determination, see the current
edition of the ASME Code, Section IV.

5. The safety valve capacity for each steam boiler shall be
such that with the fuel burning equipment operating at maximum capacity, the
pressure cannot rise more than five psig above the maximum allowable working
pressure.

6. When operating conditions are changed, or additional boiler
surface is installed, the valve capacity shall be increased, if necessary, to
meet the new conditions and be in accordance with subdivisions 4 and 5 of this
subsection. When additional valves are required, they may be installed on the
outlet piping provided there is no intervening valve.

7. If there is any doubt as to the capacity of the safety
valve, an accumulation test shall be run (see the current edition of the
ASME Code, Section VI, Care of Heating Boilers)VI).

8. No valve of any description shall be placed between the
safety valve and the boiler, nor on the discharge pipe between the safety valve
and the atmosphere. The discharge pipe shall be at least full size and be
fitted with an open drain to prevent water lodging in the upper part of the
safety valve or in the discharge pipe. When an elbow is placed on the safety
valve discharge pipe, it shall be located close to the safety valve outlet,
or the discharge pipe shall be securely anchored and supported. All safety valve
discharges shall be so located or piped as not to endanger persons working in
the area.

F. Safety relief valve requirements for hot water boilers.

1. Each hot water boiler shall have one or more officially
rated (ASME Code stamped and National Board rated) safety relief valves
set to relieve at or below the maximum allowable working pressure of the
boiler. Safety relief valves officially rated as to capacity shall have pop
action when tested by steam. When more than one safety relief valve is used on
hot water boilers, the additional valve or valves shall be officially rated and
shall be set within a range not to exceed six psig above the maximum allowable
working pressure of the boiler up to and including 60 psig and 5.0% for those
having a maximum allowable working pressure exceeding 60 psig. Safety relief
valves shall be spring loaded. Safety relief valves shall be so arranged that
they cannot be reset at a higher pressure than the maximum permitted by this
paragraph.

2. No materials liable to fail due to deterioration or
vulcanization when subject to saturated steam temperature corresponding to
capacity test pressure shall be used for any part.

3. No safety relief valve shall be smaller than 3/4 inch nor
larger than 4-1/2 inches standard pipe size, except that boilers having a heat
input not greater than 15,000 BTU per hour may be equipped with a safety relief
valve of 1/2 inch standard pipe size. The inlet opening shall have an inside
diameter approximately equal to, or greater than, the seat diameter. In no case
shall the minimum opening through any part of the valve be less than 1/2 inch
diameter or its equivalent area.

4. The required steam relieving capacity, in pounds per hour,
of the pressure relieving device or devices on a boiler shall be the greater of
that determined by dividing the maximum output in BTU at the boiler outlet
obtained by the firing of any fuel for which the unit is installed by 1,000, or
on the basis of pounds of steam generated per hour per square foot of boiler
heating surface as given in Table 2. When necessary a greater relieving
capacity of valves shall be provided. In every case, the requirements of subsectionsubdivision F 6 of this section shall be met.

5. When operating conditions are changed, or additional boiler
heating surface is installed, the valve capacity shall be increased, if
necessary, to meet the new conditions and shall be in accordance with
subdivision F 6 of this section. The additional valves required, on account of
changed conditions, may be installed on the outlet piping provided there is no
intervening valve.

6. Safety relief valve capacity for each boiler shall be so
that, with the fuel burning equipment installed and operated at maximum
capacity the pressure cannot rise more than 6six psig above the
maximum allowable working pressure for pressure up to and including 60 psig and
5.0% of maximum allowable working pressures over 60 psig.

7. If there is any doubt as to the capacity of the safety
relief valve, an accumulation test shall be run (see the current edition of
the ASME Code, Section VI, Care of Heating Boilers)VI).

8. No valve of any description shall be placed between the
safety relief valve and the boiler, nor on the discharge pipe between the
safety relief valve and the atmosphere. The discharge pipe shall be at least
full size and fitted with an open drain to prevent water lodging in the upper
part of the safety relief valve or in the discharge pipe. When an elbow is
placed on the safety relief valve discharge pipe, it shall be located close to
the safety relief valve outlet or the discharge pipe shall be securely anchored
and supported. All safety relief valve discharges shall be so located or piped
as not to endanger persons working in the area.

G. Valve replacement and repair. Safety valves and safety
relief valves requiring repair shall be replaced with a new valve or repaired
by the original manufacturer, its authorized representative, or the holder of a
"VR" Stamp.

H. Pressure relieving devices. Boilers and fired storage
water heaters except those exempted by the Act shall be equipped with pressure
relieving devices in accordance with the requirements of Section IVthe
current edition of the of the ASME Boiler and Pressure Vessel Code,
Section IV.

I. Instruments, fittings and control requirements.
Instruments, fittings and controls for each boiler installation shall comply
with the requirements of the current edition of the ASME Heating
Boiler Code, Section IV.

J. Low water fuel cutoff.

1. Each automatically fired hot water heating boiler with heat
input greater than 400,000 BTU'sBTUs per hour shall have an
automatic low water fuel cutoff whichthat has been designed for
hot water service, located so as to stop the fuel supply automatically when the
surface of the water falls to the level established in subdivision 2 of this
subsection (also see ASME Heating Boiler Code, Section IV).

2. As there is no normal waterline to be maintained in a hot
water heating boiler, any location of the low water fuel cutoff above the
lowest safe permissible water level established by the boiler manufacturer is
satisfactory.

3. A coil type boiler or a water tube boiler with heat input
greater than 400,000 BTU'sBTUs per hour requiring forced
circulation, to prevent overheating of the coils or tubes, shall have a flow
sensing device installed in the outlet piping, instead of the low water fuel
cutoff required in subdivision 1 of this subsection to stop the fuel supply
automatically when the circulating flow is interrupted.

K. Steam gauges.

1. Each steam boiler shall have a steam gauge connected to its
steam space, its water column, or its steam connection, by means of a siphon or
equivalent device exterior to the boiler. The siphon shall be of sufficient
capacity to keep the gauge tube filled with water and arranged so that the
gauge cannot be shut off from the boiler except by a cock.

2. The range of the scale on the dial of a steam boiler
pressure gauge shall be not less than 30 psig nor more than 60 psig. The gauge
shall be provided with effective stops for the indicating pointer at the zero
point and at the maximum pressure point. The travel of the pointer from 0zero to full scale 30 psig shall be at least three inches.

L. Pressure or altitude gauges.

1. Each hot water boiler shall have a pressure or altitude
gauge connected to it or to its flow connection in a manner so that it cannot
be shut off from the boiler except by a cock with tee or lever handle placed on
the pipe near the gauge. The handle of the cock shall be parallel to the pipe
in which it is located when the cock is open.

2. The range of the scale on the dial of the pressure or
altitude gauge shall be not less than 1-1/2 times nor more than three times the
maximum allowable working pressure. The gauge shall be provided with effective
stops for the indicating pointer at the 0zero point and at the
maximum pressure point.

3. Piping or tubing for pressure or altitude gauge connections
shall be of nonferrous metal when smaller than one inch pipe size.

M. Thermometers. Each hot water boiler shall have a
thermometer located and connected so that it shall be easily readable when
observing the water pressure or altitude gauge. The thermometer shall be
located so that it will at all times indicate the temperature in degrees
Fahrenheit of the water in the boiler at or near the outlet.

N. Water gauge glasses.

1. Each steam boiler shall have one or more water gauge
glasses attached to the water column or boiler by means of valved fittings. The
lower fitting shall be provided with a drain valve of the straightaway type
with opening not less than 1/4 inch diameter to facilitate cleaning. Gauge
glass replacement shall be possible while the boiler is under pressure.

2. Transparent material, other than glass, may be used for the
water gauge provided that the material has proved suitable for the pressure,
temperature and corrosive conditions encountered in service.

O. Stop valves and check valves.

1. If a boiler can be closed off from the heating system by
closing a steam stop valve, there shall be a check valve in the condensate
return line between the boiler and the system.

2. If any part of a heating system can be closed off from the
remainder of the system by closing a steam stop valve, there shall be a check
valve in the condensate return pipe from that part of the system.

P. Feedwater connections.

1. Feedwater, make-up water, or water treatment shall be
introduced into a boiler through the return piping system or through an
independent feedwater connection whichthat does not discharge
against parts of the boiler exposed to direct radiant heat from the fire.
Feedwater, make-up water, or water treatment shall not be introduced
through openings or connections provided for inspection or cleaning, safety
valve, safety relief valve, surface blowoff, water column, water gauge glass,
pressure gauge or temperature gauge.

2. Feedwater piping shall be provided with a check valve near
the boiler and a stop valve or cock between the check valve and the boiler or
return pipe system.

Q. Return pump. Each boiler equipped with a condensate return
pump, where practicable, shall be provided with a water level control arranged
to maintain the water level in the boiler automatically within the range of the
gauge glass.

R. Repairs and renewals of boiler fittings and appliances.
Whenever repairs are made to fittings or appliances, or it becomes necessary to
replace them, the repairs or replacements shall comply with the requirements
for new installations.

S. Conditions not covered by this chapter. Any case not
specifically covered by this chapter shall be treated as a new boiler or
pressure vessel installation pursuant to 16VAC25-50-280 or may be referred to
the chief inspector for instructions concerning the requirements.

16VAC25-50-380. Pressure vessels.

A. Maximum allowable working pressure for standard pressure
vessels. The maximum allowable working pressure for standard pressure vessels
shall be determined in accordance with the applicable provisions of the edition
of the ASME Code or API-ASME code under which they were constructed and
stamped. The maximum allowable working pressure shall not be increased to a
greater pressure than shown on the manufacturers nameplate stamping and data
report.

1. For internal pressure. The maximum allowable working
pressure on the shell of a nonstandard pressure vessel shall be determined by
the strength of the weakest course computed from the thickness of the plate,
the tensile strength of the plate, the efficiency of the longitudinal joint,
the inside diameter of the weakest course and the factor set by this chapter.

TStE

=

maximum allowable working pressure, psi

RFS

where:

TS = ultimate tensile strength of shell plate, psi. When the
tensile strength of the steel plate is not known, it shall be taken as 55,000
psi for temperatures not exceeding 700°F.

t = minimum thickness of shell plate of weakest course,
inches,

E = efficiency of longitudinal joint depending upon
construction. Use the following values:

For riveted joints -- calculated riveted efficiency;

For fusion-welded joints:

Single lap weld

40%

Double lap weld

50%

Single butt weld

60%

Double butt weld

70%

Forge weld

70%

Brazed steel

80%

R = inside radius of weakest course of shell, inches, provided
the thickness does not exceed 10% of the radius. If the thickness is over 10%
of the radius, the outer radius shall be used.

FS = factor of safety allowed by this chapter.

2. For external pressure. The maximum allowable working
pressure for cylindrical nonstandard pressure vessels subjected to external or
collapsing pressure shall be determined by the rules in the ASME Code,
Section VIII, Division 1, of the ASME Code.

3. Factors of safety. The minimum factor of safety shall in no
case be less than 3.5 for vessels built on or after January 1, 1999. For
vessels built prior to January 1, 1999, the minimum factor of safety shall in
no case be less than 4.0. The factor of safety may be increased when deemed
necessary by the inspector to insure the operation of the vessel within safe
limits. The condition of the vessel and the particular service of which it is
subject will be the determining factors.

4. The maximum allowable working pressure permitted for formed
heads under pressure shall be determined by using the appropriate formulas from
the ASME Code, Section VIII, Division 1, ASME Code and the
tensile strength and factors of safety given in subdivisions 1 and 3 of this
subsection.

C. Inspection of inaccessible parts. Where in the opinion of
the inspector, as the result of conditions disclosed at the time of inspection,
it is advisable to remove the interior or exterior lining, covering, or
brickwork to expose certain parts of the vessel not normally visible, the owner
or user shall remove the materials to permit proper inspection and to establish
construction details. Metal thickness shall be determined utilizing appropriate
equipment including drilling if necessary.

D. Pressure relief devices. Pressure relief devices for each
pressure vessel installation, not exempt by the Act, shall comply with the
requirements of the ASME Pressure Vessel Code, Section VIII.

E. Safety appliances.

1. Each pressure vessel shall be protected by safety and
relief valves and indicating and controlling devices which will insure its safe
operation. These valves and devices shall be constructed, located and installed
so that they cannot readily be rendered inoperative. The relieving capacity of
the safety valves shall prevent a rise of pressure in the vessel of more than
10% above the maximum allowable working pressure, taking into account the
effect of static head. Safety valve discharges shall be located or piped so as
not to endanger persons working in the area.

2. Safety valves and safety relief valves requiring repair
shall be replaced with a new valve or repairs shall be performed by the
original manufacturer, its authorized representative, or the holder of a
"VR" stamp.

F. Repairs and renewals of fittings and appliances. Whenever
repairs are made to fittings or appliances, or it becomes necessary to replace
them, the repairs or replacements shall comply with requirements for new
installations.

G. Conditions not covered by this chapter. All cases not
specifically covered by this chapter shall be treated as new installations or
may be referred to the chief inspector for instructions concerning the
requirements.

16VAC25-50-430. Hydrostatic pressure tests.

A. A hydrostatic pressure test, when applied to boilers or
pressure vessels, shall not exceed 1.25 times the maximum allowable working
pressure, except as provided by the current edition of the ASME Code.
The pressure shall be under proper control so that in no case shall the
required test pressure be exceeded by more than 2.0%.

B. See 16VAC25-50-360 A 4 for temperature limitations on
particular power boiler installations.

C. When a hydrostatic test is to be applied to existing
installations, the pressure shall be as follows:

1. For all cases involving the question of tightness, the
pressure shall be equal to the working pressure.

2. For all cases involving the question of safety, the test
pressure shall not exceed 1.25 times the maximum allowable working pressure for
temperature. During such test the safety valve or valves shall be removed or
each valve disk shall be held to its seat by means of a testing clamp and not
by screwing down the compression screw upon the spring.

16VAC25-50-460. Blowoff equipment.

A. The blowdown from a boiler or boilers that enters a sewer
system or blowdown which is considered a hazard to life or property shall pass
through blowoff equipment that will reduce pressure and temperature as required
below.

B. The temperature of the water leaving the blowoff equipment
shall not exceed 140°F.

C. The pressure of the blowdown leaving any type of blowoff
equipment shall not exceed 5.0five psig.

D. The blowoff piping and fittings between the boiler and the
blowoff tank shall comply with Section I of the current edition of
the ASME codeCode, Section I and ANSIASME
B31.1.

E. All materials used in the fabrication of boiler blowoff
equipment shall comply with Section II of the current edition of the
ASME codeCode, Section II.

F. All blowoff equipment shall be fitted with openings to
facilitate cleaning and inspection.

G. Blowoff equipment which conforms to the provisions set
forth in the National Board publication, "Boiler Blowoff Equipment",
shall meet the requirements of this section.

16VAC25-50-540. Jacketed kettles and miniatures boilers.

Jacketed kettles and miniature boilers are acceptable for
installation if constructed and stamped in accordance with Section I, IV, or
VIII, Division 1, of the current edition of the ASME codeCode
and registered with the National Board.

NOTICE: The following
forms used in administering the regulation were filed by the agency. The forms
are not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of a form with a hyperlink to
access it. The forms are also available from the agency contact or may be
viewed at the Office of the Registrar of Regulations, 900 East Main Street,
11th Floor, Richmond, Virginia 23219.

Part CG (General), Part CW (Steam and Waterside Control)
and Part CF (Combustion Side Control) Flame Safeguard of ANSI/ASME CSD-1,
Controls and Safety Devices for Automatically Fired Boilers, 2009, American
Society of Mechanical Engineers.

Basis: Section 54.1-2400 of the Code of Virginia
provides the Board of Nursing the authority to promulgate regulations that are
reasonable and necessary to administer effectively the regulatory system.

Among the powers and duties of the Board of Nursing in § 54.1-3005
of the Code of Virginia is a provision relating to name tags for nurses in
certain employment settings.

Purpose: The purpose of the proposed action is to
promulgate a regulation that adequately protects nurses but also offers
sufficient information for patients who need to know what type of practitioner
is providing care and how to identify the practitioner in case there is
evidence of unprofessional conduct. The board had to balance nurses' privacy
and personal security concerns with its responsibility to adopt regulations
that protect the public health and safety.

Substance: The proposed amendment specifies that the
policy of the employment setting for name identification of health care
practitioners can determine how the nurse's name is displayed on a name badge.

Issues: The primary advantage of the proposed amendment
is greater flexibility and potentially greater protection for nurses who are
concerned about their security both within and outside their practice setting.
There are no disadvantages to the public because the badge must still indicate
the appropriate title, so a patient would know whether this person is an RN,
LPN, "patient care technician," or some other title. There are no
advantages or disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. In response
to a petition for rulemaking,1 the Board of Nursing (Board) proposes
to amend the requirements for nurses identification badges.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. The current regulation requires that
registered nurses (RNs) and licensed practical nurses (LPNs) wear
identification that indicates the person's first and last name. It also
provides for exceptions by stating that "Any person practicing in hospital
emergency departments, psychiatric and mental health units and programs, or in health
care facilities units offering treatment for clients in custody of state or
local law-enforcement agencies may use identification badges with first name
and first letter only of last name and appropriate title."

The Board proposes to eliminate the requirement that the badge
indicates the person's first and last name, and instead state that "Name
identification on a badge for identification of health care practitioners shall
follow the policy of the health care setting in which the nurse is employed."2
In both the current and proposed regulations, the identification badge would be
required to have the person's appropriate title for the license, registration,
or student status under which she is practicing.

In a survey of 320 nurses in the Commonwealth conducted by the
Virginia Nurses Association, 81% preferred that that the badge not include
their full name.3 Concerns with safety and an increase in stalking
were cited. The proposal to allow employers flexibility concerning name
identification on the badge would potentially be beneficial in that some or
many employers may choose to not have the full name listed, which may reduce
the occurrences of stalking and harassment of nurses.

The proposed regulation keeps the requirement that the badge
have the person's appropriate title, but does not require a minimum for name
identification. An employer could potentially choose to not have the name on
the badge at all. It seems likely though, that most employers would prefer to
have a form of name (first name and last initial for example) on the badge so
that patients or family members could correctly identify a nurse being
referenced. Overall, the proposed amendments likely produce a net benefit.

Businesses and Entities Affected. The proposed amendments
affect the 29,831 LPNs and 104,956 RNs licensed in the Commonwealth and their
employers.4 Most nurses work for medical practices, long-term care
facilities, or hospital systems.

Projected Impact on Employment. The proposed amendments do not
affect employment.

Effects on the Use and Value of Private Property. The proposed
amendments do not affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not
affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not
significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect
businesses.

Localities. The proposed amendments do not adversely affect
localities.

Other Entities. The proposed amendments do not adversely affect
other entities.

Agency's Response to Economic Impact Analysis: The Board
of Nursing concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed amendment requires that a nurse's name badge
must follow the policy of the employment setting for name identification of
health care practitioners.

18VAC90-19-50. Identification; accuracy of records.

A. Any person regulated by this chapter who provides direct
client care shall, while on duty, wear identification that is clearly visible
and indicates the person's first and last name and the appropriate title
for the license, registration, or student status under which he is practicing
in that setting. Name identification on a badge for identification of health
care practitioners shall follow the policy of the health care setting in which
the nurse is employed. Any person practicing in hospital emergency
departments, psychiatric and mental health units and programs, or in health
care facilities units offering treatment for clients in custody of state or
local law-enforcement agencies may use identification badges with first name
and first letter only of last name and appropriate title.

B. A licensee who has changed his name shall submit as legal
proof to the board a copy of the marriage certificate, a certificate of naturalization,
or court order evidencing the change. A duplicate license shall be issued by
the board upon receipt of such evidence and the required fee.

C. Each licensee shall maintain an address of record with the
board. Any change in the address of record or in the public address, if
different from the address of record, shall be submitted by a licensee
electronically or in writing to the board within 30 days of such change. All
notices required by law and by this chapter to be mailed by the board to any licensee
shall be validly given when mailed to the latest address of record on file with
the board.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Nursing the authority to promulgate regulations to administer the regulatory system. In addition, § 54.1-3005 of the Code of Virginia provides authority for the board to approve nursing education programs.

Purpose: The purpose of the proposed regulatory action is to use national accreditation as a standard for demonstrated quality in nursing education, create more opportunities for financial aid for students, enhance employment opportunities, and facilitate academic progression for graduates to baccalaureate or master degrees.

Quality may be demonstrated by a higher percentage of graduates passing the national examination (NCLEX) from accredited nursing education programs. In 2014, 86% of graduates from accredited programs passed NCLEX, and 76% of graduates from nonaccredited programs passed. The board requires a passage rate of 80% over a three-year period to maintain approval of a nursing education program.

94% of employers in Virginia (predominantly hospitals) reported that accredited nursing programs have a large to moderate impact on clinical outcomes for registered nurses. Accreditation standards result in a quality education demonstrated in a number of ways, but most importantly, in the clinical care nurses provide to patients. Therefore, it is essential to protect the health and safety of citizens for the Board of Nursing to move toward accreditation of all registered nursing education programs.

The goal of this action is to align educational programs with recommendations of the National Council of State Boards of Nursing and the Institute of Medicines Future of Nursing report, which recommends increasing the proportion of nurses with a baccalaureate degree to 80% by 2020. Nurses from practical, associate, and diploma programs who graduate from nonaccredited programs will find it difficult, if not impossible, to obtain a baccalaureate degree. Graduates of nonaccredited programs will also find it increasingly difficult to find employment as employers, especially many hospitals, are hiring only baccalaureate degree nurses.

Substance: The proposed amendments require all prelicensure registered nursing education programs in Virginia to have accreditation or candidacy status with a national accrediting agency recognized by the U.S. Department of Education by the year 2020. The accrediting bodies currently recognized are the Commission on Collegiate Nursing Education (CCNE), the Accreditation Commission for Education in Nursing (ACEN), and the Commission for Nursing Education Accreditation. There will be no change for prelicensure programs preparing students for licensed practice nursing.

Issues: The primary advantage of the proposed amendments is greater assurance of quality in the didactic and clinical education for registered nurses. For graduates of such programs, there are advantages in employment opportunities and availability of graduate level education to further their careers. There are no disadvantages for nurses or the public.

There is an advantage to the board because accredited programs only have to be reevaluated every 10 years, whereas nonaccredited programs have to be reevaluated every five years, a process that consumes resources and personnel. There are no disadvantages to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to require that each registered nursing (RN) education program be accredited or be a candidate for accreditation in order to maintain Board-approved status. Additionally, the Board proposes to expand the number of approved accrediting organizations for nursing education programs.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Required Accreditation for RN Programs: Under the current regulation RN education programs do not need to be accredited in order to maintain board-approved status. Nonaccredited RN education programs are reevaluated at least every five years by submission of a comprehensive self-evaluation report and a survey visit by representatives of the Board. Accredited RN education programs are reevaluated at least every 10 years by submission of a comprehensive self-evaluation report as provided by the Board. As evidence of compliance with specific requirements of this chapter, the Board may accept the most recent study report, site visit report, and final decision letter from the accrediting body. According to the Department of Health Professions, all 33 bachelors' degree RN education programs in the Commonwealth are accredited. Of the 45 associates' degree RN education programs in Virginia, 26 are currently accredited and 19 are currently unaccredited.

The Board proposes to require that all RN education programs be accredited or be in accreditation candidacy status in order to maintain board approval. For programs that are not currently accredited and did not plan to pursue accreditation without the Board's proposed requirement, this proposal will introduce several thousand dollars of fees in acquiring and maintaining accreditation. For information on those fees, please see the appendices at the end of this document for fee schedules from three Board-recognized accrediting organizations. For at least some of the currently nonaccredited programs, there would be further additional cost in changing the program to meet the accrediting organization's requirements.

On the other hand, there would be some savings to offset costs for accreditation in that an accredited program only has to be reevaluated by the board every 10 years by submission of a report, and an accredited program may use its reports from the accredited body as evidence of compliance with Board regulations. A nonaccredited program has to be reevaluated every 5 years and requires submission of a full report and a survey visit from a Board representative. Both the Board and the accredited programs would realize some savings by the longer period between reevaluation for continued approval by the Board. The cost for a survey visit by the Board is $2,200; an accredited program would realize that savings every 5 years.

There is some evidence that RNs from accredited nursing education programs perform better than RNs from unaccredited programs. Members of the Virginia Hospital & Healthcare Association were surveyed concerning the accreditation of nursing education programs. When asked whether they saw a difference in clinical practice between RNs from accredited nursing programs and nonaccredited nursing programs, 86% chose "Yes, RNs from accredited nursing school programs demonstrate a stronger and more in depth clinical practice than nurses from nonaccredited nursing school programs, versus 14% who chose "No, we do not see a difference in clinical practice between RNs from accredited and nonaccredited nursing school programs." When asked to evaluate the effect of nursing program accreditation on delivering quality clinical outcomes to patients within their institution, a) 74% chose "Accredited nursing school program RNs have a large impact on clinical outcomes," b) 20% chose "Accredited nursing school program RNs have a moderate impact on clinical outcomes," and c) 6% chose "Accredited nursing school program RNs do not have an impact on clinical outcomes." This implies, but does not establish,1 that the health care provided by graduates of accredited nursing programs is superior to that provided by graduates of nonaccredited nursing programs and makes a positive difference in patient health outcomes. To the extent that this is accurate, the benefits of the proposed amendments likely exceed the costs.

Additional Accrediting Organizations: Under the current regulation "Accreditation" is defined as "having been accredited by the Accreditation Commission for Education in Nursing, the Commission on Collegiate Nursing Education, or a national nursing accrediting organization recognized by the board." The Board proposes to amend the definition to "having been accredited by an agency recognized by the U.S. Department of Education to include the Accreditation Commission for Education in Nursing, the Commission on Collegiate Nursing Education, the Commission for Nursing Education Accreditation, or a national nursing accrediting organization recognized by the board." The proposed new language is underlined. Additional options for accreditation can be beneficial for nursing education programs in that they may find options that are either more affordable or available, or match their mission better.

Businesses and Entities Affected. The proposed amendments potentially affect the 78 prelicensure RN education programs in the Commonwealth, as well as nursing students, employers of nurses such as hospitals, and patients. The 19 currently unaccredited RN education programs would be particularly affected.2

Projected Impact on Employment. The proposal to require accreditation for RN education programs to maintain Board-approved status may lead to the closing of a few propriety programs. This would eliminate employment at those programs. Most of the students who would have enrolled in those programs would likely enroll in a different Virginia program instead. Given the increased demand, at least some of the potential reduction in employment at the closing programs may be counterbalanced by increased employment at the programs with the potential increased demand.

Effects on the Use and Value of Private Property. The proposal to require accreditation for RN education programs to maintain Board-approved status may lead to the closing of a few propriety programs. If this were to happen, the property currently used to house these closing RN education programs would likely be used for a different purpose going forward.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Most of the RN education programs are either part of universities, community colleges, or national propriety college chains. There may be a few smaller proprietary programs. For these programs, if they are not already accredited or in candidacy status, the proposal to require accreditation for RN education programs to maintain Board-approved status would increase costs through accreditation fees and potentially in changing the program to meet the accrediting organization's requirements.

Alternative Method that Minimizes Adverse Impact. There is no clear alternative method that reduces adverse impact while still meeting the policy goal of increased minimum skills training for Board-approved RN education programs.

Adverse Impacts:

Businesses. The proposal to require accreditation for RN education programs to maintain Board-approved status would increase costs for proprietary RN education programs that are not already accredited.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

_______________________________________

1 Research that includes data on patients and their health outcomes linked with their nurses and their educational background, controlling for factors unrelated to the nurses' educational background that could affect health outcomes, would be needed to more firmly establish the actual impact.

2 Data source: Department of Health Professions

Appendix A

Appendix B

Appendix C

VA.R. Doc. No. R17-4925; Filed July 1, 2017, 1:12 p.m.

TITLE 16. LABOR AND EMPLOYMENT

BOARD OF PHARMACY

Fast-Track Regulation

Title of Regulation: 18VAC110-20. Regulations
Governing the Practice of Pharmacy (amending 18VAC110-20-310).

Statutory Authority: §§ 54.1-2400 and 54.1-3307 of the
Code of Virginia.

Basis: Regulations are promulgated under the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board
of Pharmacy the authority to promulgate regulations to administer the
regulatory system and under a specific mandate of Chapter 82 of the 2016 Acts
of Assembly.

The statutory authority for the board to promulgate regulations
to regulate the security and integrity of drugs and devices is found in § 54.1-3307 of the Code of Virginia.

Purpose: The purpose of the amended regulation is to
offer more flexibility in dispensing Schedule II drugs, so the drug is not
dispensed in a quantity beyond what the patient or prescriber initially
desires. The prescriber may write for a seven-day supply, or a 14-day supply
for a post-surgical patient, but the patient may prefer to try the drug for a
few days before filling the full prescription. For example, a patient may be
prescribed an opioid for pain after a procedure in the doctor's office. To
avoid having a quantity of drugs, which may or may not be needed, he may
request a partial fill with the ability to have the remainder dispensed if
necessary. The partial fill may provide a cost-savings advantage, especially
for self-pay patients, but the primary advantage would be the potential of
having fewer unused or unnecessary Schedule II drugs available for abuse or
diversion. The goal is to meet a patient's need for medication but offer
greater protection for public health and safety.

Rationale for Using Fast-Track Rulemaking Process: The
ability for a pharmacist to partially fill a Schedule II prescription at the
request of a patient or a prescriber is consumer friendly, less restrictive,
and not controversial. Therefore, the fast-track rulemaking process is appropriate.

Substance: Regulations for partial dispensing of a
Schedule II controlled substance are amended to allow a partial fill if
requested by the patient or the prescriber and if (i) the total quantity of all
partial fillings does not exceed the total prescribed, (ii) the prescription is
written and filled in accordance with state and federal law, and (iii) the
remaining portions are filled not later than 30 days from the original date on
the prescription.

Issues: The advantage to the public is an option for
partial filling of a Schedule II prescription as requested. There are no
disadvantages to the public. There are no advantages or disadvantages to this
agency or the Commonwealth.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The Board of
Pharmacy (Board) proposes to allow a partial fill of a Schedule II prescription
if requested by the patient or the prescriber under specified conditions.
Schedule II prescriptions include opiates such as morphine and oxycodone, as
well as other drugs.1

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. The current regulation permits
partial filling of Schedule II prescriptions for patients in long-term care
facilities and for patients with a medical diagnosis documenting a terminal
illness under set circumstances and conditions. The current regulation also
allows partial filling of a prescription for a drug listed in Schedule II if
the pharmacist is unable to supply the full quantity called for in a written or
emergency oral prescription, and she makes a notation of the quantity supplied
on the face of the written prescription. The remaining portion of the
prescription may be dispensed within 72 hours of the first partial dispensing;
however, if the remaining portion is not or cannot be dispensed within the
72-hour period, the pharmacist must notify the prescribing practitioner. No
further quantity may be supplied beyond 72 hours without a new prescription.

The Board proposes to allow prescriptions for Schedule II drugs
to be filled in partial quantities, even if a full quantity is available, if:
1) the total quantity of all partial fillings doesn't exceed the total
prescribed, 2) the prescription is written and filled in accordance with state
and federal law, and 3) the remaining portions are filled not later than 30
days from the original date on the prescription. The proposed amendments would
be beneficial. For example, say a physician writes a 14-day prescription for
post-surgical opioid pain medication, but the patient prefers to try the drug
for a few days before filling the full prescription. To avoid having a quantity
of drugs, which may or may not be needed, under the proposed regulation the patient
may request a partial fill with the ability to have the remainder dispensed if
necessary. This is potentially beneficial for two reasons. First, the partial
fill may have a cost-savings advantage, especially for self-pay patients.
Second, the partial fill would create the potential of having fewer unused or
unnecessary Schedule II drugs available for abuse or diversion. The proposed
regulation does not introduce cost. Thus, the proposed amendments would create
a net benefit.

Businesses and Entities Affected. The proposed amendments
potentially affect the 1,852 permitted pharmacies in the Commonwealth, their
customers, pharmacists, and physicians.

Projected Impact on Employment. The proposed amendments would
not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed
amendments do not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not
affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments would not
significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
amendments would not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments would not adversely affect
businesses.

Localities. The proposed amendments would not adversely affect
localities.

Other Entities. The proposed amendments would not adversely
affect other entities.

Agency's Response to Economic Impact Analysis: The Board
of Pharmacy concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments permit a pharmacist to partially fill a
Schedule II prescription at the request of a patient or a prescriber and
establish requirements so the drug is not dispensed in a quantity beyond what
the patient or prescriber initially desires.

18VAC110-20-310. Partial dispensing of Schedule II
prescriptions.

A. The partial filling of a prescription for a drug listed in
Schedule II is permissible if the pharmacist is unable to supply the full
quantity called for in a written or emergency oral prescription, and he makes a
notation of the quantity supplied on the face of the written prescription. The
remaining portion of the prescription may be dispensed within 72 hours of the
first partial dispensing; however, if the remaining portion is not or cannot be
dispensed within the 72-hour period, the pharmacist shall so notify the
prescribing practitioner. No further quantity may be supplied beyond 72 hours
without a new prescription.

B. Prescriptions for Schedule II drugs written for patients
in long-term care facilities may be dispensed in partial quantities, to include
individual dosage units. For each partial dispensing, the dispensing pharmacist
shall record on the back of the prescription (or on another appropriate record,
uniformly maintained and readily retrievable) the date of the partial
dispensing, quantity dispensed, remaining quantity authorized to be dispensed,
and the identification of the dispensing pharmacist. The total quantity of
Schedule II drugs in all partial dispensing shall not exceed the total quantity
prescribed. Schedule II prescriptions shall be valid for a period not to exceed
60 days from the issue date unless sooner terminated by the discontinuance of
the drug.

C. Information pertaining to current Schedule II
prescriptions for patients in a long-term care facility may be maintained in a
computerized system if this system has the capability to permit:

1. Output (display or printout) of the original prescription
number, date of issue, identification of prescribing practitioner, identification
of patient, identification of the long-term care facility, identification of
drug authorized (to include dosage form, strength, and quantity), listing of
partial dispensing under each prescription, and the information required
in subsection B of this section.

2. Immediate (real time) updating of the prescription record
each time a partial dispensing of the prescription is conducted.

D. A prescription for a Schedule II drug may be filled in
partial quantities to include individual dosage units for a patient with a
medical diagnosis documenting a terminal illness under the following
conditions:

1. The practitioner shall classify the patient as terminally
ill, and the pharmacist shall verify and record such notation on the
prescription.

2. On each partial filling, the pharmacist shall record the
date, quantity dispensed, remaining quantity authorized to be dispensed, and
the identity of the dispensing pharmacist.

3. Prior to the subsequent partial filling, the pharmacist
shall determine that it is necessary. The total quantity of Schedule II drugs
dispensed in all partial fillings shall not exceed the total quantity
prescribed.

4. Schedule II prescriptions for terminally ill patients may
be partially filled for a period not to exceed 60 days from the issue date
unless terminated sooner.

5. Information pertaining to partial filling may be maintained
in a computerized system under the conditions set forth in subsection C of this
section.

E. A prescription for a Schedule II drug may be filled in
partial quantities if the partial fill is requested by the patient or by the
practitioner who wrote the prescription provided:

1. The total quantity dispensed in all partial fillings
does not exceed the total quantity prescribed;

2. The prescription is written and filled in accordance
with state and federal law; and

3. The remaining portions are filled not later than 30 days
after the date on which the prescription is written.

VA.R. Doc. No. R17-5051; Filed June 26, 2017, 10:26 a.m.

TITLE 16. LABOR AND EMPLOYMENT

BOARD OF PHARMACY

Fast-Track Regulation

Title of Regulation:
18VAC110-20. Regulations Governing the Practice of Pharmacy (amending 18VAC110-20-590).

Statutory Authority: §§
54.1-2400 and 54.1-3307 of the Code of Virginia.

Basis: Regulations are promulgated under (i) the general
authority of § 54.1-2400 of the Code of Virginia, which provides the Board
of Pharmacy the authority to promulgate regulations to administer the
regulatory system and (ii) a specific mandate of Chapter 82 of the 2016 Acts of
Assembly.

The statutory authority for the board to promulgate regulations
to regulate the security and integrity of drugs and devices is found in §
54.1-3307 of the Code of Virginia.

Purpose: The purpose of the amended regulation is to
conform Virginia regulations to advice given the Department of Corrections
about the disposition of unused or expired drugs. The federal Drug Enforcement
Administration (DEA) does not allow controlled substances (Schedules II through
V) that have already been dispensed to a patient to be returned to the pharmacy
to be redispensed to another patient. Currently, regulations for drugs in
correctional facilities do permit such returns, if the facilities comply with
provisions of 19VAC110-20-400 regarding drug returns. The prohibition on
returning controlled substances after they have been dispensed to a patient is
intended to protect the health and safety of the public and the integrity of
the drug chain, so patients are assured of the efficacy and safety of the drugs
they receive.

Rationale for Using Fast-Track Rulemaking Process: The
change in disposition of scheduled drugs within correctional facilities is
necessary to conform to advice from the DEA and is not controversial. It does
not affect the public or the pharmacy community in general.

Substance: In order to comply with the DEA,
18VAC110-20-590 regarding drugs in correctional facilities is amended to
require unused or expired drugs in Schedules II through V to be destroyed at
the facility rather than being returned to the provider pharmacy. To ensure the
integrity of the destruction process, the regulations contain requirements for
witnessing the destruction and for recordkeeping.

Issues: There are no advantages or disadvantages to the
public or the agency. The Department of Corrections will have clarity in the
rules for disposition, so state regulations are consistent with DEA rules for
correctional institutions.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. As mandated
by federal regulation,1 the Board of Pharmacy (Board) proposes to
amend its Regulations Governing the Practice of Pharmacy to require
correctional facilities to destroy all Schedule II through V drugs onsite
rather than allowing them to be returned to the dispensing pharmacy.

Result of Analysis. Benefits likely outweigh costs for all
proposed changes.

Estimated Economic Impact. Current Board regulation allows
correctional facilities to return unused or discontinued prescription drugs to
the dispensing pharmacy which then would destroy them. However, federal Drug
Enforcement Administration (DEA) regulation does not allow such returns for
Schedule II through V drugs. In order to conform this regulation to DEA rules,
the Board now proposes to amend it so that it is clear that correctional facilities
are required to destroy unused or discontinued Schedule II through V drugs
onsite. Additionally, the Board proposes to specify the manner and timing of
such drug destruction.2 Further, the Board proposes to specify that
drug destruction must be performed by a nurse, pharmacist, or physician and
must be witnessed by a separate person who is a nurse supervisor, pharmacist or
physician.

Correctional facilities will likely only be affected by these
changes in Board regulation if they are currently non-compliant with DEA
regulations. Affected facilities would likely incur some small time costs
involved with destroying drugs onsite but those time costs are likely
outweighed by the benefits, for both correctional facilities and their provider
pharmacies, of being in compliance with DEA rules. For example, and in
particular, such compliance will ensure that pharmacies do not run afoul of
federal rules that could result in revocation of the DEA registration that
allows them to dispense drugs.

Businesses and Entities Affected. These proposed regulatory
changes apply to all correctional facilities in the Commonwealth as well as the
provider pharmacies that serve them.

Localities Particularly Affected. No locality is likely to be
particularly affected by these proposed regulatory changes.

Projected Impact on Employment. These proposed regulatory
changes are unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Commonwealth.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. No small businesses are likely to
incur any additional costs on account of these proposed regulatory changes.

Alternative Method that Minimizes Adverse Impact. No small
businesses are likely to incur any additional costs on account of these
proposed regulatory changes.

Adverse Impacts:

Businesses. No businesses are likely to incur any additional
costs on account of these proposed regulatory changes.

Localities. Jails that are run by localities, and are not
already in compliance with DEA rules, may incur some small time costs for
destroying prescription drugs onsite. These costs would likely be very minimal.

Other Entities. No other entities are likely to be adversely
affected by these proposed changes.

2 Drugs must be destroyed in a manner that makes them
unrecoverable and within 30 days of their discontinued use.

Agency's Response to Economic Impact Analysis: The Board
of Pharmacy concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments require a correctional facility to destroy
unused or expired drugs in Schedules II through V at the facility and establish
requirements for witnessing the destruction and for recordkeeping.

18VAC110-20-590. Drugs in correctional facilities.

A. All prescription drugs at any correctional facility shall
be subject to the following conditions:

1. Notwithstanding the allowances in subsections B, C, and D
of this section, prescription drugs shall be obtained only on an individual
prescription basis.

2. All prepared drugs shall be maintained in a suitable locked
storage area with only the person responsible for administering the drugs
having access.

3. Complete and accurate records shall be maintained of all
drugs received, administered and discontinued. The administration record shall
show the:

a. Patient name;

b. Drug name and strength;

c. Number of dosage units received;

d. Prescriber's name; and

e. Date, time and signature of the person administering the
individual dose of drug.

4. All unused or discontinued drugs shall be sealed and the
amount in the container at the time of the sealing shall be recorded on the
drug administration record. SuchSchedule VI drugs shall be
returned to the provider pharmacy or to a secondary pharmacy along with the
drug administration record, a copy of the drug administration record, or other
form showing substantially the same information, within 30 days of
discontinuance.

b. The drug administration records shall be filed in
chronological order by the provider or secondary pharmacy and maintained for a
period of one year or, at the option of the facility, the records may be
returned by the pharmacy to the facility.

c. Drugs may be returned to pharmacy stock in compliance with
the provisions of 18VAC110-20-400.

d. Other drugs shall be disposed of or destroyed by the
provider pharmacy in accordance with local, state, and federal regulations.

5. Alternatively, drugs for destruction may be forwarded by
a pharmacist directly from the correctional facility to a returns company afterAfter performing the audit required by subdivision 4 a of this
subsection and ensuring the proper maintenance of the administration records,
drugs in Schedules II through V shall be destroyed at the site of the
correctional facility using a method of destruction that renders the drug
unrecoverable.

a. The destruction shall be performed by a nurse,
pharmacist, or physician and witnessed by the nurse supervisor, a pharmacist,
or a physician.

b. Destruction of drugs shall occur within 30 days of
discontinuance.

c. A complete and accurate record of the drugs destroyed
shall be made. The original of the record of destruction shall be signed and
dated by the persons witnessing the destruction and maintained at the
correctional facility for a period of two years. A copy of the destruction
record shall be maintained at the provider pharmacy for a period of two years.

B. Emergency and stat-drug box. An emergency box and a
stat-drug box may be prepared for a correctional facility served by the
pharmacy pursuant to 18VAC110-20-540 and 18VAC110-20-550 provided that the
facility employs one or more full-time physicians, registered nurses, licensed
practical nurses, or physician assistants.

C. A correctional facility may maintain a stock of
intravenous fluids, irrigation fluids, sterile water, and sterile saline to be
accessed only by those persons licensed to administer drugs and shall be
administered only by such persons pursuant to a valid prescription or lawful
order of a prescriber. Such stock shall be limited to a listing to be
determined by the provider pharmacist in consultation with the medical and
nursing staff of the institution.

D. Except for drugs in an emergency box, stat-drug box, or a
stock of intravenous fluids, irrigation fluids, sterile water, and sterile
saline, prescription drugs, including but not limited to vaccines, may
be floor-stocked only at a medical clinic or surgery center that is part of a
correctional facility and that is staffed by one or more prescribers during the
hours of operation, provided the clinic first obtains a controlled substances
registration and complies with the requirements of 18VAC110-20-690,
18VAC110-20-700, 18VAC110-20-710, and 18VAC110-20-720.

VA.R. Doc. No. R17-5047; Filed June 26, 2017, 10:25 a.m.

TITLE 16. LABOR AND EMPLOYMENT

BOARD OF SOCIAL WORK

Proposed Regulation

Title of Regulation: 18VAC140-20. Regulations
Governing the Practice of Social Work (amending 18VAC140-20-10, 18VAC140-20-110).

Basis: Section 54.1-2400 of the Code of Virginia
provides the Board of Social Work with the authority to promulgate regulations
that are reasonable and necessary to administer effectively the regulatory
system.

Purpose: The purpose of adding "psychosocial
intervention" is to broaden the definition of clinical social work to be
more inclusive of those therapeutic modalities that expand beyond the strict
definition of psychotherapy. The addition of the term is intended to update the
current definition of clinical social work services to more accurately reflect
the scope of practice for clinical social workers.

The addition of requirements for documentation of a licensure
or certification in another jurisdiction and a report from the U.S. Department
of Health and Human Services National Practitioner Data Bank (NPDB) will
provide the board with important information about possible discipline in
another state or malpractice action against an applicant for reinstatement
whose license has been lapsed for more than one year.

The purpose of specifying an amount of supervision during the
360 hours of supervised practice is intended to ensure that a person who has
not been practicing is now competent to resume active practice with clients. A
supervisor would be required to have specific oversight for the person seeking
reinstatement or reactivation, so the board can have some assurance that a
client's health, safety, and welfare is protected when in the care of a
supervisee.

Specifying an amount of supervision for applicants for
reinstatement or reactivation who have not been actively practicing is intended
to clarify the intent in requiring supervised practice for at least 360 hours
in the 12 months immediately preceding licensure in Virginia. Currently,
regulations provide no definitive guidance on how much supervision is required
during the 360 hours. In the proposed regulations, the board has specified a
minimum of 60 hours of face-to-face direct client contact and nine hours of
face-to-face supervision during the 360 hours. Since the proposed amendments
only require active practice or supervised hours of practice for those who have
been lapsed or inactive for 10 or more years, there is a heightened necessary
for more specificity about the supervised practice to ensure safety and
competency when a full license is granted.

Substance: The proposed changes (i) amend the definition
of clinical social work services to include psychosocial interventions, (ii)
require applicants for reinstatement to provide verification of licensure in
another state, if applicable, and a report from NPDB, and (iii) amend
18VAC140-20-110 to specify an amount of supervision that is required for a
person who has not actively practiced for 10 or more years and applies to
reinstate or reactivate his license.

Issues: The primary advantage to the public is more explicit
rule about supervision for applicants whose licenses have been lapsed or
inactive. There are no disadvantages to the public. There are no advantages and
disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The Board of
Social Work (Board) proposes to amend its main regulation to: 1) update
definitions, 2) require applicants for reinstatement of licensure to provide
proof of licensure in another state, if they have been licensed in another
state, and a report from the U.S. Department of Health and Human Services'
National Practitioner Data Bank (NPDB) and 3) specify the nature of supervision
that is required for individuals who are seeking reinstatement and whose
licenses have lapsed for 10 or more years.

Result of Analysis. Benefits likely outweigh costs for all
proposed changes.

Estimated Economic Impact. Description: This chapter
"establishes qualification for licensure, sets a schedule and fee for
renewal and establishes the standard of practice for licensure of social
workers."1

Current regulation defines "clinical social work
services" as: "the application of social work principles and methods
in performing assessments and diagnoses based on a recognized manual of mental
and emotional disorders or recognized system of problem definition, preventive
and early intervention services and treatment services, including but not
limited to, psychotherapy and counseling for mental disorders, substance abuse,
marriage and family dysfunction, and problems caused by social and
psychological stress or health impairment." The Board now proposes to add
"psychosocial interventions"2 to the treatment services in
this definition. Board staff reports that this change is being proposed to make
this definition more reflective of the current scope of practice. No affected
entity is likely to incur costs on account of this change. To the extent that
it may clarify scope of practice, this change will benefit interested parties
who read this regulation.

This regulation currently requires individuals who are applying
for reinstatement of licensure more than one year after licensure expiration to
provide documentation of having completed continuing education hours during the
time their license had lapsed up to a maximum of four years. Such individuals
are also required to provide proof of competency by documenting either: 1)
active practice in another United States jurisdiction for at least 24 of the 60
months immediately preceding licensure application, 2) active practice in an
exempt setting for at least 24 of the 60 months immediately preceding licensure
application or 3) practice under supervision for at least 360 hours in the 12
months immediately preceding licensure application.

The Board now proposes to additionally require that individuals
who are applying to reinstate their license provide documentation of any other
license or certificate held in another political jurisdiction and a current
NPDB report. The Board also proposes to limit the requirement that these
individuals provide proof of continuing or supervised practice (as laid out
above) to only those individuals whose Virginia licenses had been lapsed for 10
years or more.

Requiring documentation of licensure in other jurisdictions and
a NPDB report will increase costs for applicants for reinstatement; Board staff
reports that political jurisdictions (including Virginia) charge a fee,
typically $25 or less, for licensure verification and that the cost of a NPDB
report is $6. These costs are likely outweighed by the benefit that would
likely accrue to the citizens of Virginia because these documents allow the
Board to check for disciplinary actions or malpractice claims that applicants
may have been subject to.

Board staff reports that the Board proposes to limit the
requirement that individuals provide proof of continuing or supervised practice
to only those individuals whose licenses have lapsed for 10 years or more in
order to reduce the burden of reinstatement costs on individuals who likely
have not been out of practice long enough to place doubt on their ability to
practice competently. Social workers whose licenses have been lapsed for
between one and nine years, and who do not meet the active practice criteria to
show continued competency, will likely save time costs, and may save the cost
of paying for supervision, on account of this change.

Current regulation requires that individuals reinstating lapsed
licenses, and who must undertake supervised practice, complete at least 360
hours of practice under supervision; current regulation does not, however,
specify the parameters of that supervision. The Board now proposes to require
that these supervised practice hours include at least 60 hours of face-to-face
direct client contact and nine hours of face-to-face contact with the
supervisor. Board staff reports that these face-to-face requirements are
proportional to the requirements for initial licensure. Board staff further
reports that the Board does not anticipate any supervisee incurring additional
costs on account of these changes. These changes will provide the benefit of
clarity for individuals who may have been confused about what is required under
supervised practice.

Businesses and Entities Affected. These proposed regulatory
changes will affect all clinical social workers as well as all individuals who
apply for reinstatement of licensure. Board staff reports that the Board
currently licenses 6,458 clinical social workers. Board staff does not have an
estimate of the number of individuals who might be affected by the changes to
rules for reinstatement.

Localities Particularly Affected. No locality should be
particularly affected by these proposed regulatory changes.

Projected Impact on Employment. These proposed regulatory
changes are unlikely to significantly affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Commonwealth.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Individuals seeking reinstatement of
Virginia licensure, who plan to practice as individual proprietors or in a
small practice setting, will likely incur some additional costs on account of
being required to provide a current NPDB reports and proof of licensure or
certification in other political jurisdictions.

Alternative Method that Minimizes Adverse Impact. There are
likely no alternative methods that would both meet the Board's aims and further
lower costs for applicants.

Adverse Impacts:

Businesses. Individuals seeking reinstatement of Virginia
licensure, who plan to practice as independently rather than seeking employment
in another business, will likely incur some additional costs on account of
being required to provide a current NPDB reports and proof of licensure or
certification in other political jurisdictions.

Localities. No localities are likely to incur costs on account
of these proposed regulatory changes.

Other Entities. These proposed regulatory changes are unlikely
to adversely affect other entities in the Commonwealth.

2 Medical-dictionary.com defines psychosocial
intervention as a nonpharmacologic maneuver intended to alter a patient's
environment or reaction to lessen the impact of a mental disorder.

Agency's Response to Economic Impact Analysis: The Board
of Social Work concurs with the analysis of the Department of Planning and
Budget.

Summary:

The proposed changes (i) amend the definition of clinical
social work services to include psychosocial interventions, (ii) require
applicants for reinstatement to provide verification of licensure in another
state, if applicable, and a report from the U.S. Department of Health and Human
Services National Practitioner Data Bank, and (iii) specify the amount of
supervision required for a person who has not actively practiced for 10 or more
years and who applies to reinstate or reactivate his license.

Part I
General Provisions

18VAC140-20-10. Definitions.

A. The following words and terms when used in this chapter
shall have the meanings ascribed to them in § 54.1-3700 of the Code of
Virginia:

Board

Casework

Casework management and supportive services

Clinical social worker

Practice of social work

Social worker

B. The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates otherwise:

"Accredited school of social work" means a school
of social work accredited by the Council on Social Work Education.

"Active practice" means post-licensure practice at
the level of licensure for which an applicant is seeking licensure in Virginia
and shall include at least 360 hours of practice in a 12-month period.

"Clinical course of study" means graduate course
work that includes specialized advanced courses in human behavior and the
social environment, social justice and policy, psychopathology and diversity
issues; research; clinical practice with individuals, families, and groups; and
a clinical practicum that focuses on diagnostic, prevention and treatment
services.

"Clinical social work services" include the
application of social work principles and methods in performing assessments and
diagnoses based on a recognized manual of mental and emotional disorders or
recognized system of problem definition, preventive and early intervention
services, and treatment services, including but not limited topsychosocial
interventions, psychotherapy, and counseling for mental disorders,
substance abuse, marriage and family dysfunction, and problems caused by social
and psychological stress or health impairment.

"Exempt practice" is that which meets the conditions
of exemption from the requirements of licensure as defined in § 54.1-3701
of the Code of Virginia.

"Face-to-face supervision" means the physical
presence of the individuals involved in the supervisory relationship during
either individual or group supervision or the use of technology that provides
real-time, visual contact among the individuals involved.

"Nonexempt practice" is that which does not meet
the conditions of exemption from the requirements of licensure as defined in §
54.1-3701 of the Code of Virginia.

"Supervisee" means an individual who has submitted
a supervisory contract and has received board approval to provide clinical
services in social work under supervision.

"Supervision" means a professional relationship
between a supervisor and supervisee in which the supervisor directs, monitors
and evaluates the supervisee's social work practice while promoting development
of the supervisee's knowledge, skills and abilities to provide social work
services in an ethical and competent manner.

18VAC140-20-110. Late renewal; reinstatement; reactivation.

A. A social worker or clinical social worker whose license
has expired may renew that license within one year after its expiration date
by:

2. Paying the penalty for late renewal and the renewal fee as
prescribed in 18VAC140-20-30.

B. A social worker or clinical social worker who fails to
renew the license after one year and who wishes to resume practice shall apply for
reinstatement and pay the reinstatement fee, which shall consist of the
application processing fee and the penalty fee for late renewal, as set forth
in 18VAC140-20-30. An applicant for reinstatement shall also provide documentation:

1. Documentation of having completed all applicable
continued competency hours equal to the number of years the license has lapsed,
not to exceed four years;

2. Documentation of any other health or mental health
licensure or certification held in another United States jurisdiction, if
applicable; and

3. A current report from the U.S. Department of Health and
Human Services National Practitioner Data Bank.

AnC. In addition to requirements set forth in
subsection B of this section, an applicant for reinstatement whose
license has been lapsed for 10 or more years shall also provide evidence of
competency to practice by documenting:

1. Active practice in another United States jurisdiction for
at least 24 out of the past 60 months immediately preceding application;

2. Active practice in an exempt setting for at least 24 out of
the past 60 months immediately preceding application; or

3. Practice as a supervisee under supervision for at least 360
hours in the 12 months immediately preceding reinstatement of licensure
in Virginia. The supervised practice shall include a minimum of 60 hours of
face-to-face direct client contact and nine hours of face-to-face supervision.

C.D. A social worker or clinical social worker
wishing to reactivate an inactive license shall submit the difference
between the renewal fee for active licensure minus any fee already paidand the fee for inactive licensure renewal and document completion of
continued competency hours equal to the number of years the license has been
inactive, not to exceed four years. An applicant for reactivation who has been
inactive for four10 or more years shall also provide evidence of
competency to practice by documenting:

1. Active practice in another United States jurisdiction for
at least 24 out of the past 60 months immediately preceding application;

2. Active practice in an exempt setting for at least 24 out of
the past 60 months immediately preceding application; or

3. Practice as a supervisee under supervision for at least 360
hours in the 12 months immediately preceding reactivation of licensure
in Virginia. The supervised practice shall include a minimum of 60 hours of
face-to-face direct client contact and nine hours of face-to-face supervision.

Basis: Section 54.1-2400 of the Code of Virginia
authorizes the Board of Veterinary Medicine to promulgate regulations to
administer the regulatory system and to levy fees sufficient to cover expenses.

The specific authority of the board relating to establishment
of faculty and resident licensure is found in subdivision 3 of § 54.1-3801
of the Code of Virginia and in the powers and duties of the board in §
54.1-3804 of the Code of Virginia.

Purpose: The proposed action is mandated by the third
enactment of Chapter 306 of the 2016 Acts of Assembly, which provides that the
Board of Veterinary Medicine shall adopt regulations for the licensure of
veterinarians employed by the United States or the Commonwealth who are engaged
in the practice of veterinary medicine, pursuant to § 54.1-3801 of the
Code of Virginia, as part of a veterinary medical education program located in
the Commonwealth and accredited by the American Veterinary Medical Association
Council on Education by July 1, 2018.

The intent of the board is to establish licensure for persons
who are engaged in the practice of veterinary medicine at an accredited
veterinary college or any of its subsidiary clinics, so those individuals who
provide clinical care to animals will be accountable to the board. The ability
to discipline those practitioners if they are found in violation of law or
regulation, will protect the health and safety of patients and the welfare of
their owners.

Substance: In accordance with the provisions of Chapter
306 of the 2016 Acts of Assembly, the board is proposing to promulgate
regulations for a faculty license and an intern/resident license for persons
providing clinical care to animals at an accredited veterinary education
program in Virginia. Proposed regulations set fees for application and renewal,
establish the qualifications for a faculty or resident license, and set out the
limitations on practice settings for such licenses.

Issues: The primary advantage of the amendments is
accountability for the clinical care of animals provided by faculty, interns,
and residents at the veterinary school. There are no disadvantages for the
public, which will have some recourse if their animal is harmed by the
negligence or unprofessional conduct by a veterinarian at a veterinary
educational program. There are no advantages or disadvantages to the
Commonwealth.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to
Chapter 306 of the 2016 Acts of Assembly,1 the Board of Veterinary
Medicine (Board) proposes to establish a faculty license and an intern/resident
license for persons providing clinical care to animals at an accredited
veterinary education program in Virginia.

Result of Analysis. The benefits likely exceed the costs for
all proposed changes.

Estimated Economic Impact. Prior to 2016, veterinarians
employed by the Commonwealth, including those at a state medical education
program, were exempt from licensing requirements of the Board. Chapter 306 of
the 2016 Acts of Assembly eliminated that exemption and authorized the Board to
establish requirements for the licensure of such persons. Pursuant to the
legislative change, the Board proposes to establish requirements for faculty
and intern/resident licensure for practice of veterinary medicine at the
educational programs.

The proposed regulation establishes a $100 fee for initial
licensure of a faculty member, a $75 annual renewal fee, and a $25 late renewal
fee. The proposed initial and annual renewal fees for intern/resident licenses
are $25. More importantly, these individuals will be subject to all of the
standards of the Board. If they fail to comply with standards designed to
protect health, safety, and welfare of animals or their owners, the Board would
be able to take corrective action. Therefore, the proposed regulation will
provide incentives for best veterinary practices at educational programs and
should produce net benefits.

Localities Particularly Affected. The proposed regulation would
apply to faculty, residents, and interns at any veterinarian educational
program. Currently, there is only one such program, Virginia-Maryland College
of Veterinary Medicine which has campuses in Blacksburg and Leesburg.

Projected Impact on Employment. The proposed regulation is not
anticipated to have a significant impact on employment.

Effects on the Use and Value of Private Property. No effect on
the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate
development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation does not apply
to small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed
regulation does not introduce an adverse impact on small businesses.

Adverse Impacts:

Businesses. The proposed regulation does not have an adverse
impact on businesses.

Localities. The proposed regulation will not adversely affect
localities.

Other Entities. The affected faculty, interns, residents, or
the educational program will have to pay for the initial and renewal licensure
fees.

Agency's Response to Economic Impact Analysis: The Board
of Veterinary Medicine concurs with the analysis of the Department of Planning
and Budget.

Summary:

In accordance with the provisions of Chapter 306 of the
2016 Acts of Assembly, the Board of Veterinary Medicine is proposing
regulations for a faculty license and an intern/resident license for persons
providing clinical care to animals at an accredited veterinary education
program in Virginia.

18VAC150-20-100. Fees.

The following fees shall be in effect:

Veterinary application for licensure

Veterinary application for faculty licensure

$200

$100

Veterinary license renewal (active)

$175

Veterinary license renewal (inactive)

Veterinary faculty license renewal

$85

$75

Veterinary reinstatement of expired license

$255

Veterinary license late renewal

Veterinary faculty license late renewal

$60

$25

Veterinarian reinstatement after disciplinary action

Veterinary intern/resident license -- initial or renewal

$450

$25

Veterinary technician application for licensure

$65

Veterinary technician license renewal

$50

Veterinary technician license renewal (inactive)

$25

Veterinary technician license late renewal

$20

Veterinary technician reinstatement of expired license

$95

Veterinary technician reinstatement after disciplinary action

$125

Equine dental technician initial registration

$100

Equine dental technician registration renewal

$70

Equine dental technician late renewal

$25

Equine dental technician reinstatement

$120

Initial veterinary establishment permit registration

$300

Veterinary establishment renewal

$200

Veterinary establishment late renewal

$75

Veterinary establishment reinstatement

$75

Veterinary establishment reinspection

$300

Veterinary establishment -- change of location

$300

Veterinary establishment -- change of veterinarian-in-charge

$40

Duplicate license

$15

Duplicate wall certificate

$25

Returned check

$35

Licensure verification to another jurisdiction

$25

18VAC150-20-122. Requirements for faculty licensure.

A. Upon payment of the fee prescribed in 18VAC150-20-100
and provided that no grounds exist to deny licensure pursuant to
§ 54.1-3807 of the Code of Virginia, the board may grant a faculty license
to engage in the practice of veterinary medicine as part of a veterinary
medical education program accredited by the American Veterinary Medical
Association Council on Education to an applicant who:

1. Is qualified for full licensure pursuant to
18VAC150-20-110 or 18VAC150-20-120;

2. Is a graduate of an accredited veterinary program and
has an unrestricted current license or if lapsed, is eligible for reinstatement
in another United States jurisdiction; or

3. Is a graduate of a veterinary program and has advanced
training recognized by the American Board of Veterinary Specialties or a
specialty training program acceptable to the veterinary medical education
program in which he serves on the faculty.

B. The dean of a veterinary medical education program
shall provide verification that the applicant is being or has been hired by the
program and shall include an assessment of the applicant's clinical competency
and clinical experience that qualifies the applicant for a faculty license.

C. The holder of a faculty license shall be entitled to
perform all functions that a person licensed to practice veterinary medicine
would be entitled to perform as part of his faculty duties, including patient
care functions associated with teaching, research, and the delivery of patient
care that takes place only within the veterinary establishment or diagnostic
and clinical services operated by or affiliated with the veterinary program. A
faculty license shall not authorize the holder to practice veterinary medicine
in nonaffiliated veterinary establishments or in private practice settings.

D. A faculty license shall expire on December 31 of the
second year after its issuance and may be renewed annually without a
requirement for continuing education, as specified in 18VAC150-20-70, as long
as the accredited program certifies to the licensee's continued employment.
When such a license holder ceases serving on the faculty, the license shall be
null and void upon termination of employment. The dean of the veterinary
medical education program shall notify the board within 30 days of such
termination of employment.

18VAC150-20-123. Requirements for an intern/resident
license.

A. Upon payment of the fee prescribed in 18VAC150-20-100
and provided that no grounds exist to deny licensure pursuant to
§ 54.1-3807 of the Code of Virginia, the board may issue a temporary
license to practice veterinary medicine to an intern or resident. Upon
recommendation of the dean or director of graduate education of the veterinary
medical education program, such a license may be issued to an applicant who is
a graduate of an AVMA-accredited program or who meets requirements of the
Educational Commission of Foreign Veterinary Graduates or the Program for the
Assessment of Veterinary Education Equivalence of the American Association of
Veterinary State Boards, as verified by the veterinary medical education
program. The application shall include the beginning and ending dates of the
internship or residency.

B. The intern or resident shall be supervised by a fully
licensed veterinarian or a veterinarian who holds a faculty license issued by
the board. The intern or resident shall only practice within the veterinary
establishment or diagnostic and clinical services operated by or affiliated
with the veterinary program. A temporary license shall not authorize the holder
to practice veterinary medicine in nonaffiliated veterinary establishments or
in private practice settings.

C. An intern or resident license shall expire on August 1
of the second year after its issuance and may be renewed upon recommendation by
the dean or director of graduate education of the veterinary medical education
program.

The amendments update the regulation and incorporate the
specific funding methodology used to allocate funds to local departments of
social services for fraud prevention, detection, and investigation activities.

Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.

22VAC40-325-20. The Fraud Reduction/Elimination Effort.

A. In compliance with § 63.2-526 of the Code of Virginia, the
department shall establish a statewide fraud prevention, detection, and
investigation program to be named the Fraud Reduction/Elimination Effort
(FREE).

1. The department shall develop and implement policies and
procedures for the FREE program.

2. The department shall provide a detailed local
reimbursement procedure, on an annual basis, to assist in the formulation of
the local department's FREE program operation plan. The department's procedure
shall project the available funding and the number of local fraud investigators
for each local department that the FREE program will support. The number of
investigators shall be based on an evaluation of the available funding and
appropriate criteria from one or more of the following: a local department's
average TANF and Food Stamp caseload size, average number of monthly
applications for food stamps and TANF, number of local department workers,
geographic location, number of fraud investigations, program compliance,
collections, and performance expectations.

1. Each local department shall conduct fraud prevention,
detection, and investigation activities consistent with the requirements
of federal regulations, the Code of Virginia, the regulations contained
hereinthis chapter, and the department's FREE program policy.

2. Each local department shall submit to the department,
for annual approval, a program operation plan, formatted by the
department, which shall include a description of the local department's
prevention, detection, and investigative process,; an
agreement with the Commonwealth's attorney,; identification of
staff charged with oversight or supervisory responsibility of the FREE program,;
a performance expectation monitoring process,; a signed
commitment to adhere to specified responsibilities identified in the Statement
of Assurance section of the program operation plan,; and, if
requested, a proposed annual budget to include the identification of the FREE
program investigators, their salary, fringe benefit amounts, supporting
operating costs, hours worked per week, and time dedicated to the FREE
program.

3. Upon request, each local department shall provide the
department with an accounting of FREE program expenditures.

C. Funding for the FREE program shall be comprised of
balances in the Fraud Recovery Special Fund, general funds appropriated for
this activity, and any federal funds available for this purpose.

1. In order to receive reimbursement of direct costs and
supporting costs of operation, a local department must:

a. Comply with all pertinent law, regulation, and
policy;

b. In accordance with the law, each local department shall
establish and maintain a FREE prevention, detection, and investigation
unit; and

c. Recover fraud-related and nonfraud-related
overpayments of designated federal assistance programs. ReimbursementAn
allocation to localities shall be made in accordance with the following
methodology for the allocation of funds to localities as developed by the work
group convened by the commissioner, consisting of local department
representatives and senior department managers: 40% based on each
agency's Temporary Assistance for Needy Families, food stamp, energy
assistance, and child care caseload; 20% based on the number of investigations
completed; 20% based on the number of established claims; and 20% based on the
actual collections from established claims. Each local department's
level of reimbursement of direct and support operation costs is paid from
available federal funds, general funds and state retained portion of
collectionsdepartment is reimbursed for fraud-related expenses through
funds appropriated for local social services staff and operations.

2. Local departments may contract with other local departments
to share a fraud prevention, detection, and investigation unit and may
contract with private entities to perform fraud investigations. Any private
entity performing fraud investigations shall comply with the requirements of
§ 30-138 of the Code of Virginia and the restrictions of § 63.2-526
of the Code of Virginia.

VA.R. Doc. No. R16-4195; Filed June 30, 2017, 2:28 p.m.

TITLE 23. TAXATION

DEPARTMENT OF TAXATION

Fast-Track Regulation

Title of Regulation: 23VAC10-500. Business,
Professional and Occupational License Tax Regulations (amending 23VAC10-500-210).

Statutory Authority: § 58.1-3701 of the Code of
Virginia; Chapter 50 of the 2017 Acts of Assembly.

Basis: Section 58.1-203 of the Code of Virginia provides
the Tax Commissioner with the power to issue regulations relating to the
interpretation and enforcement of the laws of the Commonwealth governing taxes
administered by the Department of Taxation. The authority for the current
regulatory action is discretionary.

Section 58.1-3701 of the Code of Virginia directs the
department to issue business, professional, and occupational license (BPOL) tax
guidelines. After July 1, 2001, the guidelines became subject to the
Administrative Process Act and were given the weight of regulations. The BPOL
guidelines were formally promulgated as regulations in Volume 24, Issue 23, of
the Virginia Register of Regulations, effective October 6, 2008.

Chapter 50 of the 2017 Acts of Assembly (House Bill 1961)
directs the department to "promulgate regulations that clarify its
interpretation of subdivision B 2 of § 58.1-3732 of the Code of Virginia
regarding the methodology for determining deductible gross receipts
attributable to business conducted in another state or a foreign country. The
regulations shall be based on previous Rulings of the Tax Commissioner
regarding subdivision B 2 of § 58.1-3732 and the decision of the Supreme Court
of Virginia in The Nielsen Company, LLC v. County Board of Arlington County,
289 Va. 79 (2015)."

Purpose: The BPOL tax requires a multistate business to assign
its gross receipts to each office or other definite place of business. The
statute specifies the criteria to be used by various types of businesses (e.g.,
contractors, retailers, wholesalers, etc.), but some businesses do not keep
records or operate in a manner that fits the statutory criteria. Therefore the
statute allows such businesses to apportion their gross receipts using payroll
in each office.

Multistate businesses are allowed a deduction from the gross
receipts assigned to an office to the extent that gross receipts are
attributable to a state in which the business is subject to income tax.
However, when a business has used payroll apportionment to assign receipts to
an office, it is usually impossible to identify which of those receipts are attributable
to another state. Therefore the regulation is amended to address this situation
and allow payroll apportionment to be used again in computing the deduction.

Rationale for Using Fast-Track Rulemaking Process: The
fast-track rulemaking process is intended for proposed regulations that are
expected to be noncontroversial. As this regulatory action will incorporate
policies recently upheld by the Virginia Supreme Court, this action is not
expected to be controversial.

Substance: This regulatory action will amend the section
of the Business, Professional, and Occupational License Tax Regulation entitled
"Apportionment; in general." (23VAC10-500-210) to reflect the
department's policy with respect to apportionment of gross receipts as applied
in PD 12-146 and upheld by the Virginia Supreme Court in Nielsen Co. (US), LLC
v. County Board of Arlington County, 289 Va. 79, 767 S.E.2d 1 (2015).

The issue is how a taxpayer can subdivide gross receipts that
have been assigned to a definite place of business by means of payroll
apportionment. Normally a taxpayer would have to identify specific gross
receipts that qualify for any deduction or exemption. However, the use of
payroll apportionment to assign gross receipts to a location compromises the
ability of a taxpayer to identify specific characteristics of those receipts.
Insisting on specific identification of receipts after apportionment would
effectively deny any deduction or exemption for which some receipts may
qualify.

Therefore, this regulatory action amends the section relating
to apportionment to allow apportionment to be used a second time to calculate
deductions and exemptions. An example illustrating this policy is also added.

Issues: This regulatory action ensures uniform
application of the tax laws to taxpayers and may avoid the necessity for
taxpayers to file appeals with the department or the courts. This regulatory
action poses no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact
Analysis:

Summary of the Proposed Amendments to Regulation. The
Department of Taxation (Tax) proposes to amend its Business, Professional and
Occupational License (BPOL) Tax Regulation to incorporate the Tax
Commissioner's private letter ruling1 related to the apportionment
of deductions to gross receipts when taxable gross receipts are apportioned
using the payroll apportionment formula. Tax initiated this action after the
Tax Commissioner's private letter ruling was upheld by the Virginia Supreme
Court in The Nielson Company (US), LLC v. County Board of Arlington County, 289
Va. 79 (2015).2 After Tax initiated this action, the General
Assembly passed legislation3 requiring Tax to promulgate regulations
to reflect "previous Rulings of the Tax Commissioner regarding
subdivision B 2 of § 58.1-3732 and the decision of the Supreme Court of
Virginia in The Nielsen Company, LLC v. County Board of Arlington County."

Result of Analysis. Benefits likely outweigh costs for all
proposed changes.

Estimated Economic Impact. Current Virginia law that allows the
imposition of BPOL taxes requires that multi-state businesses assign gross
receipts to an office or definite place of business whenever possible. Some
businesses, however, do not have receipts that can be traced to just one
definite place of business. In that case, the law allows them to apportion
receipts according to the proportion of payroll employees in each of their
definite places of business. Virginia law also sets out deductions that may be
subtracted from gross receipts, or gross purchases, that would normally be
taxable in Virginia. These deductions would also normally have to be traceable
to a definite place of business. A dispute over such deductions led
circuitously to this regulatory action. In 2012, the Tax Commissioner issued a
private letter decision that allowed the apportionment of deductions using the
payroll apportionment formula in instances where a business's taxable gross
receipts had been apportioned using payroll apportionment. This private letter
ruling was issued to address a tax dispute between the Nielson Company (US),
LLC4 and Arlington County, Virginia. Arlington County appealed this
decision and that case (The Nielson Company (US), LLC v. County Board of
Arlington County) eventually reached the Virginia Supreme Court which upheld
the Tax Commissioner's decision on this matter. Tax now proposes to amend this
regulation to reflect the Tax Commissioner's guidance on apportioning deductions
to taxable gross receipts.

Because the Tax Commissioner's ruling as affirmed by the
Virginia Supreme Court already has the force of law, no affected entity is
likely to incur costs on account of these proposed regulatory changes. Both
affected businesses and Virginia localities are very likely to benefit from
these proposed regulatory changes as they will likely eliminate confusion about
how deductions may be apportioned.

Businesses and Entities Affected. These proposed regulatory
changes will affect all businesses that have staff in Virginia and other
political jurisdictions and that meet the criteria to apportion gross receipts
using the payroll apportionment formula. Tax does not have an estimate for how
many businesses would be affected.

Localities Particularly Affected. No locality should be
particularly affected by these proposed regulatory changes.

Projected Impact on Employment. These proposed regulatory
changes are unlikely to significantly affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Commonwealth.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. These proposed regulatory changes are
unlikely to adversely affect any small business in the Commonwealth.

Alternative Method that Minimizes Adverse Impact. No small
businesses will be adversely affected by these proposed regulatory changes.

Adverse Impacts:

Businesses. Businesses in the Commonwealth are unlikely to
experience any adverse impacts on account of this proposed regulation.

Localities. No localities are likely to incur costs on account
of these proposed regulatory changes.

Other Entities. These proposed regulatory changes are unlikely
to adversely affect other entities in the Commonwealth.

4 The Nielson Company, LLC promotes itself as a
"global information and measurement company that provides clients with a
comprehensive understanding of consumers and consumer behavior."

Agency's Response to Economic Impact Analysis: The
Department of Taxation agrees with the Department of Planning and Budget's
economic impact analysis.

Summary:

Pursuant to Chapter 50 of the 2017 Acts of Assembly, the
amendments reflect the previous rulings of the Tax Commissioner regarding
subdivision B 2 of § 58.1-3732 of the Code of Virginia and the Supreme Court of
Virginia's decision in The Nielsen Company (US), LLC v. County Board of
Arlington County, et al. The amendments allow apportionment of deductions using
the payroll apportionment formula in instances where a business's taxable gross
receipts had been apportioned using payroll apportionment.

23VAC10-500-210. Apportionment; in general.

A. If the taxpayer has more than one definite place of
business and it is not possible or practical to determine at which definite
place of business gross receipts should be taxed, gross receipts must be
divided between the definite places of businesses by payroll. Some activity
must occur or be controlled from a definite place of business for gross
receipts to be taxed by the locality of the definite place of business. If an
entity's definite place of business is in a locality that does not tax gross
receipts, a different locality may not tax these gross receipts simply because
the first locality does not have a license tax.

B. If apportionment has been used to divide the gross
receipts of the business among its definite places of businesses, then the use
of apportionment to assign gross receipts to a definite place of business is
presumed to have compromised the ability of the taxpayer to determine the situs
of the assigned gross receipts for any other purpose, such as the other-state
deduction. For the purposes of this section, "other-state deducation"
means a deduction for receipts attributable to business in another state in
which it is subject to income tax as described in § 58.1-3732 B of the
Code of Virginia. Generally, the same apportionment method used to assign gross
receipts to a definite place of business must be used to subdivide those
receipts unless the taxpayer has demonstrated that some other method is
feasible and more accurate. This requires an analysis of the facts and
circumstances applicable to each taxpayer and its definite places of business.
Both of the following conditions must be satisfied before apportionment can be
used to subdivide receipts assigned to a definite place of business by any
method.

1. The business satisfies the conditions in subsection A of
this section that make it necessary to subdivide the gross receipts assigned to
a definite place of business. For example, in the case of the other-state
deduction this would require determining if any employees at the Virginia
definite place of business participated in interstate transactions by, for
example, contacting or shipping goods to customers in other states,
participating with employees in other offices in transactions, etc. If there
has been no participation in transactions that generate interstate receipts, then
the business is not eligible for the deduction and it has no need to subdivide
the receipts assigned to the definite place of business.

2. It must be impossible or impractical to use specific
criteria to subdivide the receipts assigned to the definite place of business.
This will normally be the case when gross receipts have been assigned to a
definite place of business by apportionment because apportionment ignores
anything related to a specific transaction other than the criteria used for
apportionment, which usually is payroll.

C. Examples:

1. A large electronics retailer has its main sales office in
City A and maintains a satellite office with its own management in the distant
County B. Sales staff from City A make the initial sales contact in County B
and process all sales related paperwork. Sales staff in County B make all
personal and follow-up sales contacts in County B. The definite place of
business is in both City A and County B since each sales office is equally
responsible for sales solicitations. If it were not possible or practical to
determine which definite place of business gross receipts should be attributed
to, gross receipts must be apportioned between the definite places of business
on the basis of the payroll of the sales staff at each respective place of
business.

2. A group medical practice has
offices in County A and City B. County A does not tax gross receipts. Patient
visits and recordkeeping functions occur in County A, but physicians see
patients in the City B offices on a regular basis. City B may tax the gross
receipts generated from services performed at offices located within its
boundaries. However, City B may not tax the practice's gross receipts generated
from County A simply because the county does not have a license tax.

3. A service business has two divisions, one national and
the other regional. Both divisions operate out of an office in County A. While
the business can segregate its receipts by division, it cannot assign the
receipts of its national division to each office, and it uses payroll
apportionment to assign receipts to the office in County A. The receipts of the
regional division are assigned to County A using the criteria in
§ 58.1-3703.1 A 3 a of the Code of Virginia. Assuming that the business
meets the requirements to be eligible for the other-state deduction with
respect to both divisions, the business may use the same payroll apportionment
factor of the national division to subdivide the receipts of the national
division assigned to County A. The business will be required to identify
specific receipts of the regional division assigned to County A that are
eligible for the other-state deduction unless the business can show that it is
impractical or impossible to identify specific receipts for this purpose.

VA.R. Doc. No. R17-5002; Filed June 29, 2017, 10:13 a.m.

GENERAL NOTICES/ERRATA

Vol. 33 Iss. 24 - July 24, 2017

BOARD FOR THE BLIND AND VISION IMPAIRED

Notice of Periodic Review and Small
Business Impact Review

Pursuant to Executive Order 17 (2014) and §§ 2.2-4007.1
and 2.2-4017 of the Code of Virginia, the Board of the Blind and Vision
Impaired is conducting a periodic review and small business impact review of 22VAC45-12,
Public Participation Guidelines. The review of this regulation will be
guided by the principles in Executive Order 17 (2014).

The purpose of this review is to determine whether this
regulation should be repealed, amended, or retained in its current form. Public
comment is sought on the review of any issue relating to this regulation,
including whether the regulation (i) is necessary for the protection of public
health, safety, and welfare or for the economical performance of important
governmental functions; (ii) minimizes the economic impact on small businesses
in a manner consistent with the stated objectives of applicable law; and (iii)
is clearly written and easily understandable.

Comments must include the commenter's name and address
(physical or email) information in order to receive a response to the comment
from the agency. Following the close of the public comment period, a report of
both reviews will be posted on the Town Hall and a report of the small business
impact review will be published in the Virginia Register of Regulations.

STATE CORPORATION COMMISSION

COMMONWEALTH OF VIRGINIA

STATE CORPORATION COMMISSION

AT RICHMOND, JUNE 29, 2017

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUE-2013-00045

Concerning the establishment of a renewable energy
pilot program for third party power purchase agreements

ORDER UPDATING GUIDELINES

On March 14, 2013, the Virginia General Assembly enacted
Chapter 382 of the 2013 Virginia Acts of Assembly ("2013
Legislation") requiring the State Corporation Commission ("Commission")
to conduct a renewable energy pilot program for third party power purchase
agreements within the service territory of Virginia Electric and Power Company
and to establish certain guidelines regarding implementation of this pilot
program. Pursuant to the 2013 Legislation, on November 14, 2013, the Commission
established a pilot program and developed Guidelines Regarding Notice
Information for a Third Party Renewable Power Purchase Agreement
("Guidelines").

On April 5, 2017, the Virginia General Assembly approved
Chapter 803 of the 2017 Virginia Acts of Assembly ("2017
Amendments"), which, among other things, re-enacted the 2013 Legislation
with amendments requiring that a pilot program now be conducted within the
certificated service territory of each investor-owned electric utility in
Virginia, excepting any utility described in § 56-580 G of the Code of
Virginia. As a result, updates to the Applicability and Program Cap Management
sections of the Guidelines are necessary.

NOW THE COMMISSION, upon consideration of this matter, is of
the opinion and finds that the Guidelines should be updated as set forth in
Attachment A to this Order to reflect the 2017 Amendments.1

Accordingly, IT IS ORDERED THAT:

(1) The instant case is moved from "closed" to
"active" status in the records maintained by the Clerk of the
Commission and is restored to the Commission's docket for the purpose of
updating the Commission's Guidelines.

(2) The Guidelines, which were established pursuant to Chapter
382 of the 2013 Virginia Acts of Assembly, are hereby updated as set forth in
Attachment A to this Order to reflect the amendments enacted by Chapter 803 of
the 2017 Virginia Acts of Assembly.

(3) Any renewable third party power purchase agreement
established pursuant to the pilot program shall be established in accordance
with these Guidelines and shall comply with the attendant statutory
requirements,

1A copy of the
Guidelines that highlights the updates included in Attachment A also is
attached to this Order as Attachment B. A copy of the Guidelines set forth in
Attachment A and Attachment B also may be viewed at http://www.scc.virginia.gov/pur/pilot.aspx.

Attachment A

UPDATED GUIDELINES REGARDING NOTICE INFORMATION FOR A THIRD
PARTY RENEWABLE POWER PURCHASE AGREEMENT

A. Purpose.

The Commission is establishing these guidelines pursuant to
Chapter 382 of the 2013 Virginia Acts of Assembly ("Chapter 382")
regarding a pilot program for third party power purchase agreements for
renewable generation. Chapter 382 specifically provides that the State
Corporation Commission ("Commission") must establish guidelines
concerning (i) information to be provided in written notices and (ii) procedures
for collecting and posting information derived from such notices on the
Commission's website. In addition, the Commission may establish general
guidelines for its administration of the pilot program.

B. Applicability.

These guidelines are applicable to any owner or operator of a
solar-powered or windpowered electric generation facility (referred to herein
as "owner-operator") located on premises owned or leased by an
eligible customer-generator, as defined in § 56-594 of the Code of
Virginia, within the certificated service territory of an investor-owned
electric utility ("Pilot Utility").1 Such a facility shall
have a generation capacity of 50 kW to 1 MW, except that if the eligible
customer-generator served by the owner-operator is an entity with tax-exempt
status in accordance with § 501(c)3 of the Internal Revenue Code of 1954,
as amended, then such facility is not limited by the 50 kW minimum, and can
qualify with a generation capacity range of 1 kW to 1 MW. An eligible facility
shall provide electricity to only one customer.

The owner-operator shall be permitted to sell the electricity
generated from such facility exclusively to such eligible customer-generator
under a power purchase agreement to provide such eligible customer-generator
third party financing of the costs of such a renewable generation facility. The
owner-operator also may be subject to any requirements of its local governing
body and the Virginia Department of Environmental Quality.

The pilot program limitation of 50 MW for Dominion Energy Virginia
includes participation among jurisdictional and non-jurisdictional customers,
and the limitation of 7 MW for Appalachian Power Company targets participation
among nonprofit, private institutions of higher education.

C. Filing of Notice.

Any party who intends to enter into a third-party power
purchase agreement under the pilot program must provide written notice to the
Commission and to the Pilot Utility of the party's intent to enter into such
agreement not less than 30 calendar days before the effective date of such
agreement.

D. Contents of Filing.

The owner-operator shall provide written notice to the
Commission and the Pilot Utility not less than 30 calendar days before the
effective date of such agreement and shall include the following information:

• Identity of the owner-operator of the renewable electric
generation facility;

• The name, address, and under seal as "confidential"
or "extraordinarily sensitive" information, the Pilot Utility
electric account number of the eligible customer-generator;

• Location of the premise(s) upon which the renewable electric
generation facility will be installed;

• Renewable source of the electric generation facility;

• Generation capacity of the renewable electric generation
facility expressed in terms of kWs available for delivery to the end-user
stated in alternating current (AC);

• Expected date that the electric generation facility will be
placed in service. The term "placed in service" shall have the same
meaning as used in 26 USC § 48 of the federal Business Energy Investment
Tax Credit for certain renewable energy technologies;

• Duration of the third-party power purchase agreement;

• Proof of § 501(c)3 tax exempt status (when applicable); and

• Under seal as "confidential" or "extraordinarily
sensitive" information, the projected installation cost of the renewable
electric generation facility, in dollars per Watt (AC). Subsequent to the
placed in service date, such projected cost of installation shall be updated
for the actual cost of installation.

E. Posting and Tracking.

Within three business days of receiving a written notice of
intent, the Commission Staff shall post to its website the cumulative amount of
solar-powered generation capacity and, separately, the cumulative amount of
wind-powered generation capacity associated with the notice of intent,
expressed in kW or MW (AC), and the remaining aggregate capacity available for
future pilot projects.

Within three business days of the placed in service date of
such facility, the owner operator shall provide written notification of such
placed in service date to the Commission and the Pilot Utility. Within three
business days of receiving such written notice of the placed in service date,
the Commission Staff shall post to its website the cumulative amount of
installed solar-powered generation capacity and, separately, the cumulative
amount of wind-powered generation capacity, expressed in kW or MW (AC).
Simultaneously, the capacity remaining available for future pilot projects also
shall be posted. The owner-operator also shall provide written notice to the
Commission and the Pilot Utility of any change to the generating capacity of
the facility or of the parties to the third party power purchase agreement
within three business days of any such change.

On an annual basis, the Pilot Utility shall submit to the
Commission under seal as "confidential" or "extraordinarily
sensitive" information, a report of the individual and aggregated amount
of energy generated (kWhs) and peak capacity (kW) provided from all pilot
renewable generation facilities combined, with separate totals for wind pilot
projects and solar pilot projects. The Pilot Utility's report also shall
identify and quantify any system benefits, such as but not limited to, transmission
and distribution system benefits, line loss savings, generation capacity
savings, wholesale energy purchase offsets, fuel cost savings, and any economic
development and job creation benefits across the region or the Commonwealth.

Subsequent to the Pilot Utility's report, the Commission Staff
shall aggregate and post to its website the following information obtained from
such report and any information filed by owner-operators, with separate data
for wind-powered and solar-powered projects:

• Average projected installation costs of projects in the pilot
program, in dollars per Watt (AC);

• Average duration of the third party purchase agreements;

• Total number of customer-generators participating in the
pilot program;

• Total number of owner-operators participating in the pilot
program; and

• The city and/or county location of projects in the pilot
program that have been placed in service.

F. Program Cap Management.

The owner-operator shall fulfill the following requirements and
provide written confirmation to the Commission and the Pilot Utility that it
has met each requirement:

• The owner-operator must provide a written notice of intent as
described in Section C of these guidelines;

• The owner-operator must (i) confirm that it is a party to a
fully executed third party power purchase agreement under the pilot program,
and (ii) provide the effective date of such agreement, all within 3 business
days of such agreement's execution;

• Within 90 calendar days of filing the written notice of intent,
the owner-operator must confirm that more than 5% of projected pilot costs have
been incurred under a binding written contract as per the Section 461(h)
economic performance definitions of the U.S. Treasury Safe Harbor Rules, or
that all local permitting and zoning approvals have been secured;

• Within 180 calendar days of filing the written notice of
intent, the owner-operator must confirm that more than 25% of pilot projected
pilot costs have been incurred under a binding written contract as per the Section
461(h) economic performance definitions of the U.S. Treasury Safe Harbor Rules;
and

• Within 270 calendar days of filing the written notice of
intent, the owner-operator must confirm that the project has been "placed
in service," as that term is used in 26 USC § 48.

Upon receipt of the required confirmations, the Commission
Staff shall post to its website the following for informational purposes:

• Date of notice of intent;

• Date of fully executed agreement;

• Effective date of agreement;

• Placed in service date of the renewable generation facility;

• Installed capacity of the renewable generation facility, with
separate data for windpowered and solar-powered projects; and

• Available capacity remaining under the 50 MW limit for
Dominion Energy Virginia and available capacity remaining under the 7 MW limit
for Appalachian Power Company.

The Commission shall review the pilot program in 2015, and
every two years thereafter during the existence of the program, to determine
whether the statutory limitations on the capacity of generation facilities
included in the program should be continued, expanded, or reduced. Before
recommending any changes to such statutory limitations, the Commission may
solicit input from all interested parties.

_______________________________

1As described in
Chapter 382, the Pilot Utility is an investor-owned electric utility that was
bound by a rate case settlement adopted by the Commission that extended in its
application beyond January 1, 2002. The utility is Virginia Electric and Power
Company d/b/a Dominion Energy Virginia. Pursuant to Chapter 803 of the 2017
Virginia Acts of Assembly, this pilot program is expanded to include an
investor-owned electric utility that was not bound by a rate case settlement
adopted by the Commission that extended in its application beyond January 1,
2002, identified as Appalachian Power Company, and that such expansion expires
on July 1, 2022.

Attachment B

UPDATED GUIDELINES REGARDING NOTICE INFORMATION FOR A
THIRD PARTY RENEWABLE POWER PURCHASE AGREEMENT

A. Purpose.

The Commission is establishing these guidelines pursuant to
Chapter 382 of the 2013 Virginia Acts of Assembly ("Chapter 382")
regarding a pilot program for third party power purchase agreements for
renewable generation. Chapter 382 specifically provides that the State
Corporation Commission ("Commission") must establish guidelines
concerning (i) information to be provided in written notices and (ii)
procedures for collecting and posting information derived from such notices on
the Commission's website. In addition, the Commission may establish general
guidelines for its administration of the pilot program.

B. Applicability.

These guidelines are applicable to any owner or operator of a
solar-powered or wind-powered electric generation facility (referred to herein
as "owner-operator") located on premises owned or leased by an
eligible customer-generator, as defined in § 56-594 of the Code of
Virginia, within the certificated service territory of an investor-owned
electric utility ("Pilot Utility").1 Such a facility shall
have a generation capacity of 50 kW to 1 MW, except that if the eligible
customer-generator served by the owner-operator is an entity with tax-exempt
status in accordance with § 501(c)3 of the Internal Revenue Code of 1954, as
amended, then such facility is not limited by the 50 kW minimum, and can
qualify with a generation capacity range of 1 kW to 1 MW. An eligible facility
shall provide electricity to only one customer.

The owner-operator shall be permitted to sell the electricity
generated from such facility exclusively to such eligible customer-generator
under a power purchase agreement to provide such eligible customer-generator
third party financing of the costs of such a renewable generation facility. The
owner-operator also may be subject to any requirements of its local governing
body and the Virginia Department of Environmental Quality.

The pilot program limitation of 50 MW for Dominion Energy
Virginia includes participation among jurisdictional and non-jurisdictional
customers, and the limitation of 7 MW for Appalachian Power Company targets
participation among nonprofit, private institutions of higher education.

C. Filing of Notice.

Any party who intends to enter into a third-party power purchase
agreement under the pilot program must provide written notice to the Commission
and to the Pilot Utility of the party's intent to enter into such agreement not
less than 30 calendar days before the effective date of such agreement.

D. Contents of Filing.

The owner-operator shall provide written notice to the
Commission and the Pilot Utility not less than 30 calendar days before the
effective date of such agreement and shall include the following information:

• Identity of the owner-operator of the renewable electric
generation facility;

• The name, address, and under seal as "confidential"
or "extraordinarily sensitive" information, the Pilot Utility
electric account number of the eligible customer-generator;

• Location of the premise(s) upon which the renewable electric
generation facility will be installed;

• Renewable source of the electric generation facility;

• Generation capacity of the renewable electric generation
facility expressed in terms of kWs available for delivery to the end-user
stated in alternating current (AC);

• Expected date that the electric generation facility will be
placed in service. The term "placed in service" shall have the same
meaning as used in 26 USC § 48 of the federal Business Energy Investment Tax
Credit for certain renewable energy technologies;

• Duration of the third-party power purchase agreement;

• Proof of § 501(c)3 tax exempt status (when applicable); and

• Under seal as "confidential" or
"extraordinarily sensitive" information, the projected installation cost
of the renewable electric generation facility, in dollars per Watt (AC).
Subsequent to the placed in service date, such projected cost of installation
shall be updated for the actual cost of installation.

E. Posting and Tracking.

Within three business days of receiving a written notice of
intent, the Commission Staff shall post to its website the cumulative amount of
solar-powered generation capacity and, separately, the cumulative amount of
wind-powered generation capacity associated with the notice of intent,
expressed in kW or MW (AC), and the remaining aggregate capacity available for
future pilot projects.

Within three business days of the placed in service date of
such facility, the owner-operator shall provide written notification of such
placed in service date to the Commission and the Pilot Utility. Within three
business days of receiving such written notice of the placed in service date,
the Commission Staff shall post to its website the cumulative amount of
installed solar-powered generation capacity and, separately, the cumulative
amount of wind-powered generation capacity, expressed in kW or MW (AC).
Simultaneously, the capacity remaining available for future pilot projects also
shall be posted. The owner-operator also shall provide written notice to the
Commission and the Pilot Utility of any change to the generating capacity of
the facility or of the parties to the third party power purchase agreement
within three business days of any such change.

On an annual basis, the Pilot Utility shall submit to the
Commission under seal as "confidential" or "extraordinarily
sensitive" information, a report of the individual and aggregated amount
of energy generated (kWhs) and peak capacity (kW) provided from all pilot
renewable generation facilities combined, with separate totals for wind pilot
projects and solar pilot projects. The Pilot Utility's report also shall
identify and quantify any system benefits, such as but not limited to,
transmission and distribution system benefits, line loss savings, generation
capacity savings, wholesale energy purchase offsets, fuel cost savings, and any
economic development and job creation benefits across the region or the
Commonwealth.

Subsequent to the Pilot Utility's report, the Commission Staff
shall aggregate and post to its website the following information obtained from
such report and any information filed by owner-operators, with separate data
for wind-powered and solar-powered projects:

• Average projected installation costs of projects in the pilot
program, in dollars per Watt (AC);

• Average duration of the third party purchase agreements;

• Total number of customer-generators participating in the
pilot program;

• Total number of owner-operators participating in the pilot
program; and

• The city and/or county location of projects in the pilot
program that have been placed in service.

F. Program Cap Management.

The owner-operator shall fulfill the following requirements and
provide written confirmation to the Commission and the Pilot Utility that it
has met each requirement:

• The owner-operator must provide a written notice of intent as
described in Section C of these guidelines; • The owner-operator must (i)
confirm that it is a party to a fully executed third party power purchase agreement
under the pilot program, and (ii) provide the effective date of such agreement,
all within 3 business days of such agreement's execution;

• Within 90 calendar days of filing the written notice of
intent, the owner-operator must confirm that more than 5% of projected pilot
costs have been incurred under a binding written contract as per the Section
461(h) economic performance definitions of the U.S. Treasury Safe Harbor Rules,
or that all local permitting and zoning approvals have been secured;

• Within 180 calendar days of filing the written notice of
intent, the owner-operator must confirm that more than 25% of pilot projected
pilot costs have been incurred under a binding written contract as per the
Section 461(h) economic performance definitions of the U.S. Treasury Safe
Harbor Rules; and

• Within 270 calendar days of filing the written notice of
intent, the owner-operator must confirm that the project has been "placed
in service," as that term is used in 26 USC § 48.

Upon receipt of the required confirmations, the Commission
Staff shall post to its website the following for informational purposes:

• Date of notice of intent;

• Date of fully executed agreement;

• Effective date of agreement;

• Placed in service date of the renewable generation facility;

• Installed capacity of the renewable generation facility, with
separate data for wind-powered and solar-powered projects; and

• Available capacity remaining under the 50 MW limit for
Dominion Energy Virginia and available capacity remaining under the 7 MW limit
for Appalachian Power Company.

The Commission shall review the pilot program in 2015, and
every two years thereafter during the existence of the program, to determine
whether the statutory limitations on the capacity of generation facilities
included in the program should be continued, expanded, or reduced. Before
recommending any changes to such statutory limitations, the Commission may
solicit input from all interested parties.

_________________________

1As described in
Chapter 382, the Pilot Utility is an investor-owned electric utility that was
bound by a rate case settlement adopted by the Commission that extended in its
application beyond January 1, 2002. The utility is Virginia Electric and Power
Company d/b/a Dominion Energy Virginia-Power. Pursuant to
Chapter 803 of the 2017 Virginia Acts of Assembly. This pilot program is
expanded to include -an investor-owned electric utility that was not bound by a
rate case settlement adopted by the Commission that extended in its application
beyond January 1, 2002, identified as Appalachian Power Company, and that such
expansion expires on July I, 2022.

Meherrin Solar LLC, a wholly-owned subsidiary of Brookfield
Renewable, has provided to the Department of Environmental Quality a notice of
intent to submit the necessary documentation for a permit by rule for a small
renewable energy project (solar) in Brink, Virginia. The project is located on
the west side of Pine Log Road and south of Brink Road in Greensville County.
The project will be sited on roughly 530 acres across multiple parcels. The
solar array will connect up to 60 megawatts alternating current to Dominion
Virginia Power's grid via a new 115-kilovolt substation built off of a nearby
Dominion owned transmission line. The project will conceptually use 231,500
345-watt standard photovoltaic solar panels on a single axis tracker to follow
the sun throughout the day. NOTE: This project was previously noticed for
SolUnesco LLC, the previous owner, in the 32:2 VA.R. 290-291 September 21, 2015.

Otter Creek Solar, LLC has provided the Department of
Environmental Quality a notice of intent to submit the necessary documentation
for a permit by rule for a small renewable energy project (solar) in Chase
City, Virginia. The project is located approximately three miles west of Chase
City, on the north side and south side of Spanish Grove Road in Mecklenburg
County. The project will be sited on roughly 690 acres across multiple parcels.
The solar array will connect 60 megawatts alternating current to Dominion
Virginia Power's grid via a new 115-kilovolt substation built off of a nearby
Dominion owned transmission line. The project will conceptually use 231,500
345-watt standard photovoltaic solar panels on a single axis tracker to follow
the sun throughout the day. NOTE: The project was previously noticed by
SolUnesco, prior owner, in the 32:20 VA.R. 2514 May 30, 2016.

The following Director's Orders of the Virginia Lottery were
filed with the Virginia Registrar of Regulations on July 5, 2017. The orders
may be viewed at the Virginia Lottery, 600 East Main Street, Richmond,
Virginia, or at the office of the Registrar of Regulations, 900 East Main
Street, 11th Floor, Richmond, Virginia.

Director's Order Number One Hundred Six (17)

Virginia Lottery's Computer-Generated Game "Print 'n Play
Blackjack Classic" Final Rules for Game Operation (effective July 9, 2017)

Director's Order Number One Hundred Seven (17)

Virginia Lottery's Computer-Generated Game "Print 'n Play
Bulls Eye Bingo" Final Rules for Game Operation (effective July 9, 2017)

Director's Order Number One Hundred Eight (17)

Virginia Lottery's Computer-Generated Game "Print 'n Play
Horoscope Crossword" Final Rules for Game Operation (effective July 9,
2017)

Director's Order Number One Hundred Nine (17)

Virginia Lottery's Computer-Generated Game "Print 'n Play
Money Bag Crossword" Final Rules for Game Operation (effective July 9,
2017)

Director's Order Number One Hundred Ten (17)

Virginia Lottery's Computer-Generated Game "Print 'n Play
Rockin' Bingo" Final Rules for Game Operation (effective July 9, 2017)

Director's Order Number One Hundred Eleven (17)

Virginia Lottery's "Publix Grand Opening Bogo"
Retailer Incentive Promotion (this Director's Order becomes effective on July
15, 2017, and shall remain in full force and effect through the end date of the
incentive promotion, unless otherwise extended by the Director)

Notice of Intent to Amend the Virginia
State Plan for Medical Assistance (Pursuant to § 1902(a)(13) of
the Social Security Act (USC § 1396a(a)(13)))

Public comment period: June 28,
2017, through July 28, 2017.

The Virginia
Department of Medical Assistance Services (DMAS) hereby affords the public
notice of its intention to amend the Virginia State Plan for Medical Assistance
to provide for changes to the Methods and Standards for Establishing Payment
Rates—Inpatient Hospital Services (12VAC30-70) and Methods and Standards for
Establishing Payment Rates – Other Types of Care (12VAC30-80).

This notice is
intended to satisfy the requirements of 42 CFR 447.205 and of §
1902(a)(13) of the Social Security Act, 42 USC §
1396a(a)(13). A copy of this notice is available for public review from William
Lessard, Provider Reimbursement Division, Department of Medical
Assistance Services, 600 Broad Street,
Suite 1300, Richmond, VA 23219, or via email at william.lessard@dmas.virginia.gov.

DMAS is specifically
soliciting input from stakeholders, providers, and beneficiaries on the
potential impacts of the proposed changes to institutional provider payment
methodologies, particularly the potential impact on access to care. Comments or
inquiries may be submitted, in writing, within 30 days of this notice
publication to Mr. Lessard and such comments are available for review upon
request. Comments may also be submitted, in writing, on the Virginia Regulatory
Town Hall public comment forum attached to this notice and this notice is
available for public review on the General Notices page at https://townhall.virginia.gov/L/generalnotice.cfm.

DMAS is removing
language from the State Plan related to quarterly supplemental payments for
qualifying private hospitals for inpatient and outpatient services rendered
during the quarter. No payments have been made under the current State Plan
provision because funding has not been authorized.

Pursuant to § 2.2-4007.1 of the Code of Virginia, the
Virginia Waste Management Board conducted a small business impact review of 9VAC20-11,
Public Participation Guidelines, and determined that this regulation should
be retained in its current form. The Virginia Waste Management Board is
publishing its report of findings dated June 7, 2017, to support this decision
in accordance with § 2.2-4007.1 F of the Code of Virginia.

The current regulation continues to be needed. The regulation
explains how the public will be notified and how input will be sought, explains
the use of advisory panels, and details the public participation process during
regulatory actions. The regulation is explanatory in nature and does not place
any additional regulatory burden on the regulated community including small
businesses.

An enforcement action has been proposed for Northumberland
County for violations at the Callao wastewater treatment plant. The enforcement
action requires the county to take corrective action to address exceedances of
total recoverable zinc effluent limitations contained in the county's Virginia
Pollutant Discharge Elimination System permit. A description of the proposed
action is available at the Department of Environmental Quality office named
below or online at www.deq.virginia.gov. Kathleen
O'Connell will accept comments by email at kathleen.oconnell@deq.virginia.gov, by FAX at (804) 698-4277,
or by postal mail at the Virginia Department of Environmental Quality, 629 East
Main Street, Richmond, VA 23223, from July 24, 2017, through August 23, 2017.

Proposed Enforcement Action for
Traveler's Inn

An enforcement action has been proposed for Dinesh Patel for
violations at the Traveler's Inn wastewater treatment plant located in
Petersburg, Virginia. The enforcement action requires Mr. Patel to take
corrective action to address violations of the effluent limitations and other
conditions of his Virginia Pollutant Discharge Elimination System permit. A
description of the proposed action is available at the Department of
Environmental Quality office named below or online at www.deq.virginia.gov.
Kathleen O'Connell will accept comments by email at kathleen.oconnell@deq.virginia.gov, by FAX at (804) 698-4277,
or by postal mail at the Virginia Department of Environmental Quality, 629 East
Main Street, Richmond, VA 23223, from July 24, 2017, through August 23, 2017

Proposed Enforcement Action for Scrap
58, Inc.

An enforcement action has been proposed for Scrap 58, Inc. for
violations of the State Water Control Law in Chesapeake, Virginia. A
description of the proposed action is available at the Department of
Environmental Quality office named below or online at www.deq.virginia.gov.
Jennifer Coleman, Esq. will accept comments by email at jennifer.coleman@deq.virginia.gov, FAX at (757) 518-2009, or
postal mail at Department of Environmental Quality, Tidewater Regional Office,
5636 Southern Boulevard, Virginia Beach, VA 23462, from July 24, 2017, to
August 23, 2017.

Cumulative Table of Virginia Administrative Code Sections
Adopted, Amended, or Repealed: A table listing regulation sections that
have been amended, added, or repealed in the Virginia Register of
Regulations since the regulations were originally published or last
supplemented in the print version of the Virginia Administrative Code is
available at http://register.dls.virginia.gov/documents/cumultab.pdf.

Filing Material for Publication in the Virginia Register
of Regulations: Agencies use the Regulation Information System (RIS) to
file regulations and related items for publication in the Virginia Register
of Regulations. The Registrar's office works closely with the Department of
Planning and Budget (DPB) to coordinate the system with the Virginia Regulatory
Town Hall. RIS and Town Hall complement and enhance one another by sharing
pertinent regulatory information.

ERRATA

DEPARTMENT OF MEDICAL ASSISTANCE
SERVICES

Title of Regulation:
12VAC30-40. Eligibility Conditions and Requirements.